Now that same-gender couples can legally marry in all 50 states, more Americans than ever before are enjoying the rights and benefits that come with marriage. Estate planning is one arena where these new rights and benefits are readily apparent.

While the planning vehicles available to same-gender and opposite-gender married couples are generally the same, there are a few unique considerations those in same-gender marriages should be aware of. Here are three of the most important things to keep in mind.

Relying solely on a will is risky: For several reasons, putting a trust in place—rather than relying solely on will—is a good planning strategy for nearly everyone. Upon the death of one spouse, a will is required to go through the often long, costly, and conflict-ridden court process known as probate. However, assets passed through a trust go directly to the named beneficiaries without the need for probate.

What’s more, a trust works in cases of both your death and incapacity, while a will only goes into effect upon death. Given this, it’s usually best for those in any marriage to create trust based plans.

Don’t neglect to plan for incapacity: Estate planning is not just about planning for your death; it’s also about planning for your potential incapacity. Should you be incapacitated by illness or injury, it’s not guaranteed that your spouse would have the ultimate legal authority to make key decisions about your medical treatment and finances.

Absent a plan for incapacity, it’s left to the court to appoint the person who will make these decisions for you. Though spouses are typically given priority, this isn’t always the case, especially if unsupportive family members challenge the issue in court. To ensure your spouse has the authority to make decisions for you, you must grant him or her medical power of attorney and financial power of attorney.

Medical power of attorney gives your spouse the authority to make health-care decisions for you if you’re incapacitated and unable to do so yourself. By the same token, financial power of attorney gives your spouse the authority to manage your financial affairs. And be sure to also create a living will, so that your spouse will know exactly how you want your medical care managed in the event of your incapacity.

Ensure parental rights are protected: While the biological parent of a child in a same-gender marriage is of course automatically granted parental rights, the non-biological spouse/parent still faces a number of legal complications. Because the Supreme Court has yet to rule on the parental rights of non-biological spouses/parents in a same-gender marriage, there is a tangled, often-contradictory, web of state laws governing such rights.

To ensure the full rights of a non-biological parent, you may want to consider second-parent adoption. But, by using a variety of unique planning strategies, your Personal Family Lawyer can provide non-biological, same-gender parents with nearly all parental rights without going through adoption. Using our Kids Protection Plan®, couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes.

Dedicated to empowering your family, building your wealth and defining your legacy,

In the first part of this series, I discussed the first two estate planning tools all unmarried couples should have in place. Here, we’ll look at the final two must-have planning tools. Read Part 1 HERE.

Most people tend to view estate planning as something only married couples need to worry about. However, estate planning can be even more critical for those in committed relationships who are unmarried.

Last week, I discussed wills, trusts, and durable power of attorney. Here, we’ll look at two more must-have estate planning tools, both of which are designed to protect your choices about the type of medical treatment you’d want if tragedy should strike.

3. Medical power of attorney
In addition to naming someone to manage your finances in the event of your incapacity, you also need to name someone who can make health-care decisions for you. If you want your partner to have any say in how your health care is handled during your incapacity, you should name your partner as medical power of attorney.

This gives your partner the ability to make health-care decisions for you if you’re incapacitated and unable to make them for yourself. This is particularly important if you’re unmarried, seeing that your family could leave your partner totally out of the medical decision-making process, and even deny him or her the right to visit you in the hospital.

Don’t forget to provide your partner with a HIPAA authorization, too, so he or she will have access to your medical records to make educated decisions about your care.

4. Living will
While medical power of attorney names who can make health-care decisions in the event of your incapacity, a living will explains how your care should be handled, particularly at the end of life. If you want your partner to have control over how your end-of-life care is managed, you should name them as your agent in a living will.

A living will explains how you’d like important medical decisions made, including if and when you want life support removed, whether you would want hydration and nutrition, and even what kind of food you want and who can visit you.

Without a valid living will, doctors will most likely rely entirely on the decisions of your family or the named medical power of attorney holder when determining what course of treatment to pursue. Without a living will, those choices may not be the choices you—or your partner—would want.

We can help
If you’re involved in a committed relationship—married or not—or you just want to make sure that the people you choose are making your most important life-and-death decisions, we can support you in getting these essential estate planning tools in place.

Dedicated to empowering your family, building your wealth and defining your legacy,

Estate planning is often considered something you only need to worry about once you get married. But the reality is every adult, regardless of age, income level, or marital status, needs to have some fundamental planning strategies in place if you want to keep the people you love out of court and out of conflict.

In fact, estate planning can be even more critical for unmarried couples. Even if you’ve been together for decades and act just like a married couple, you likely aren’t viewed as one in the eyes of the law. And in the event one of you becomes incapacitated or when one of you dies, not having any planning in place can have disastrous consequences.

If you’re in a committed relationship and have yet to get—or even have no plans to get—married, the following estate planning documents are an absolute must:

1. Wills and trusts
If you’re unmarried and die without planning, the assets you leave behind will be distributed according to California’s intestacy laws to your family members. These laws provide NO protection for your unmarried partner. Given this, if you want your partner to receive any of your assets upon your death, you need to—at the very least—create a will.

However, a will is not always the best option. First and foremost, wills do not operate in the event of incapacity. Moreover, a will requires probate, a court process that can take quite some time to navigate. And finally, assets passed through a will go outright to your partner, with no protection from creditors or lawsuits. To protect those assets for your partner, you’ll need a different planning strategy.

A better option may be to place the assets you want your partner to inherit in a living trust. First off, trusts can be used to transfer assets in the event of your incapacity, not just upon your death. Trusts also do not have to go through probate, saving your partner precious time and money.

What’s more, leaving your assets in a continued trust that your partner could control would ensure the assets are protected from creditors, future relationships, and/or unexpected lawsuits.

2. Durable power of attorney

When it comes to estate planning, most people focus only on what happens when they die. However, it’s just as important—if not even more so—to plan for your potential incapacity due to an accident or illness.

If you become incapacitated and haven’t legally named someone to handle your finances while you’re unable to do so, the court will pick someone for you. And this person could be a family member who doesn’t care for or want to support your partner, or it could be a professional guardian who will charge hefty fees, possibly draining your estate.

Since it’s unlikely that your unmarried partner will be the court’s first choice, if you want your partner (or even a friend)  to manage your finances in the event you become incapacitated, you would grant your partner (or friend) a durable power of attorney.

Durable power of attorney is an estate planning tool that will give your partner immediate authority to manage your financial matters in the event of your incapacity. He or she will have a broad range of powers to handle things like paying your bills and taxes, running your business, collecting government benefits, selling your home, as well as managing your banking and investment accounts.

Next week, I’ll continue with part two in this series on must-have estate planning strategies for unmarried couples.

Dedicated to empowering your family, building your wealth and defining your legacy,

Template wills and other cheap legal documents are among the most dangerous choices you can make for the people you love. These plans can fail to keep your family out of court and out of conflict, and can leave the people you love most of all—your children—at risk.

The people you love most
It’s probably distressing to think that by using a cut-rate estate plan you could force your loved ones into court or conflict in the event of your incapacity or death. And if you’re like most parents, it’s probably downright unimaginable to contemplate your children’s care falling into the wrong hands.

Yet that’s exactly what could happen if you rely on free or low-cost fill-in-the-blank wills found online, or even if you hire a lawyer who isn’t equipped or trained to plan for the needs of parents with minor children.

Naming and legally documenting guardians entails a number of complexities that most people aren’t aware of. Even lawyers with decades of experience frequently make at least one of six common errors when naming long-term legal guardians.

If wills drafted with the help of a professional are likely to leave your children at risk, the chances that you’ll get things right on your own are much worse.

What could go wrong?
If your DIY will names legal guardians for your kids in the event of your death, that’s great. But does it include back-ups? And if you named a couple to serve, how is that handled? Do you still want one of them if the other is unavailable due to illness, injury, death, or divorce?

And what happens if you become incapacitated and are unable to care for your children? You might assume the guardians named in the DIY will would automatically get custody, but your will isn’t even operative in the event of your incapacity.

Or perhaps the guardians you named in the will live far from your home, so it would take them a few days to get there. If you haven’t made legally-binding arrangements for the immediate care of your children, it’s possible they will be placed with child protective services until those guardians arrive.

Even if you name family who live nearby as guardians, your kids are still at risk if those guardians are not immediately available if and when needed.

And do they even know where your will is or how to access it? There are simply far too many potential pitfalls when you go it alone.

Kids Legal Planning
To ensure your children are never raised by someone you don’t trust or taken into the custody of strangers (even temporarily), consider creating a comprehensive Kids Protection Plan®.

Protecting your family and assets in the event of your death or incapacity is such a monumentally important task you should never consider winging it with a DIY plan. No matter how busy you are or how little wealth you own, the potentially disastrous consequences are simply too great—and often they’re not even worth the paper they’re printed on.

Plus, proper estate planning doesn’t have to be a depressing, stressful, or morbid event. In fact, we work hard to ensure our planning process is as stress-free as possible.

What’s more, many of our clients actually find the process highly rewarding. Our proprietary systems provide the type of peace of mind that comes from knowing that you’ve not only checked estate planning off your to-do list, but you’ve done it using the most forethought, experience, and knowledge available.

Act now
If you’ve yet to do any planning, contact us to schedule a Family Estate Planning Session. This evaluation will allow us to determine your best option.

If you’ve already created a plan—whether it’s a DIY job or one created with another lawyer’s help—contact us to schedule an Estate Plan Review and Check-Up. We’ll ensure your plan is not only properly drafted and updated, but that it has all of the protections in place to prevent your children from ever being placed in the care of strangers or anyone you’d never want to raise them.

Dedicated to empowering your family, building your wealth and defining your legacy,

family estate planning 91024Executor’s Duties

An executor, sometimes called a personal representative, is the person who is named in a will, appointed by the court, and responsible for probating the will and settling the estate.

Typically, a petition of probate must be filed with the court for an executor to be appointed. If the person agrees to be the executor, and no one objects, the court will issue letters of testamentary. These letters authorize the executor to gather the estate’s assets, sell assets, pay creditors, and open an estate bank account. An executor is ultimately responsible for distributing the estate assets to the heirs in accordance with the terms of the will. If there is no will, then your executor will distribute assets in accordance with California state law. Distribution of estate assets, in either case, happens only after debts, taxes, and administration expenses are paid.

Trustee’s and Successor Trustee’s Duties

A trustee, on the other hand, is an individual or trust company named in a trust document and is in charge of the assets that are held in a trust. Assets held in a living trust avoid probate, which means court supervision is not required. In most revocable living trusts, the trust creator acts as the trustee and can make changes including moving assets to and from the trust, changing its beneficiaries, or even revoking the trust entirely if it is no longer necessary. Once the trustee is no longer able to manage his or her affairs, because of cognitive impairment or another injury, the successor trustee will step in and handle the trust management. Upon the trustmaker’s death, the successor trustee will distribute the assets held in the trust to the trust’s beneficiaries and subsequently close down the trust. So this role is similar to an executor, but without the burden of probate.

Other Thoughts

You do have the option of having more than one trustee or executor. It is often better to name a sequence of trustees or executors, however, rather than joint ones. The executor and successor trustee can be different people, but do not have to be. There are advantages and disadvantages to each setup. Be sure to speak with your trusted advisor about the nuances and legal strategies important to consider when selecting your executor and successor trustee.

Dedicated to empowering your family, building your wealth and defining your legacy,

Marc Garlett 91024

inheritance 91024One of the most prevalent misconceptions when it comes to estate planning is that a Will is all most people need. But before you fall into this trap with your own estate plan, consider these five circumstances where a will simply doesn’t work:

Avoiding Court. To take effect, a will must go through the probate process at your death (or a conservatorship if you become incapacitated while still living), which can be lengthy and deny your heirs (or family while you are incapacitated) a quick resolution to the distribution of your estate (or the ability to pay your bills while you are incapacitated). There are also situations which complicate probate even further such as having minor children or owning property in another state.

Protecting privacy. Once a will is open to probate, it is a matter of public record and open to everyone — meaning that anyone can get access to it and learn the details on everything you owned and exactly where it is going. Wills can also contain personal information that is attractive to identity thieves.

Protecting you in case of incapacity. Since a will only goes into effect upon death, it provides zero protection for you if you should become incapacitated and no longer able to handle your own financial affairs or make decisions about your health care. If that were the case, your family would have to go through the stress and expense of petitioning the court to appoint a guardian or conservator to handle your affairs. This is costly and can even drain your entire estate. This can easily be avoided by having advance medical directives and a financial power of attorney drawn as part of your comprehensive estate plan.

Protecting your assets. Passing assets to heirs via a will does not provide any protection for those assets. Once they are distributed, they become vulnerable to a divorce actions, civil lawsuits, creditors, and even bad financial decisions by your beneficiaries. Placing your assets in a trust gives you control over how and when they are distributed, and protects them from creditors and judgments. This is one of the most powerful aspects of a living trust.

Passing real estate. When your home passes to your heirs through Probate (which it will do without a trust in place) it loses the step up in tax basis that a trust can provide. That means your heirs (who are most likely your family) will have to pay capital gains tax on the difference between the value of the home when you bought it versus the value of the home now. This can be another huge financial burden to bear on top of the already expensive cost of Probate.

See, trusts aren’t just for the wealthy because wills aren’t always the best way to protect and pass on even modest financial assets. Comprehensive estate planning should use living trusts and other legal tools to preserve your assets and make things as easy as possible on your family. Taking care of your family, after all, is really what it’s all about.

To you family’s health, wealth, and happiness,
Marc Garlett 91024

family estate plan 91024As far as estate planning goes, many people have the misconception that trusts are only for the wealthy while wills are for everyone else. But that couldn’t be further from the truth. You don’t need to live in a mansion or own a fancy yacht to benefit from having a trust. The fact is, a will simply isn’t enough for most of us. Why not? There are many reasons, but one of the biggest is that a will won’t keep your family out of probate.

What is probate? Probate is a court process used to transfer the assets (not held in a trust) of a deceased person to their heirs. In other words, after your death – if you don’t have a trust in place – someone will have to petition the court to open probate so your assets can be transferred to your beneficiaries. A will only serves to guide the court on how to distribute your assets, it does not keep your family out of court.

So why do I want to avoid probate? All assets passing through probate court become a matter of public record, and as such, vulnerable to creditors, predators, and opportunists – and believe you me, there are plenty of scammers and con-artists who read the probate records to identify who is receiving an inheritance so they can go after their next mark. The court system in California is underfunded and overburdened and the probate process can take years to get through. Also, probate is very expensive, ultimately diminishing the overall assets available to your family by a substantial margin. Keep in mind too, if you have minor children the probate court will give them complete, unrestricted control of their inheritance as soon as they turn eighteen. And think about it, the probate process is generally the last thing family members want to endure after losing a loved one. Ultimately, probate just makes a hard time that much harder.

Okay, how do I avoid probate? Avoiding probate is not hard to do. By creating and transferring assets into a revocable living trust there will be no need for probate at your death. In fact, probate is really only for people with little to no assets or for those who, during their lifetime, failed to plan to keep their families out of probate court.

What are the advantages of a trust? Putting your assets in a trust avoids the probate process once you pass away. This saves your loved ones the time, money, and emotional hassles associated with probate. A trust can also be kept confidential which allows families to keep their privacy in the process. Another advantage is that a trust allows you to give your assets to minor children exactly when and how you see fit – they don’t have to become instant millionaires at eighteen if that’s not what you want. Finally, a trust can provide asset protection from your beneficiaries’ creditors, court judgments, divorces, and even their own bad money management practices.

As you can see, there are many reasons to create a trust, and being rich isn’t one of them. You can learn more about how a trust might benefit you and your family by calling us to schedule a Family Estate Planning Session. I’d be happy to sit down with you, talk about your particular situation, and help you make sure things are as easy as possible for your loved ones in the future.

To you family’s health, wealth, and happiness,
Marc Garlett 91024

Casey Kasem 91024Casey Kasem, the celebrity radio host who counted down America’s Top 40 popular songs for decades, died on June 15 at the age of 82 and left behind an estimated $80 million fortune. He also left a family feud of biblical proportions between his surviving spouse and his three children from a prior marriage. And this is exactly why I do what I do — to help keep your family connected in love, not conflict.

Kasem married his second wife, Jean, who is 22 years his junior, in 1980. Together, they had one child, Liberty Kasem. Casey also had three children from a prior marriage: Kerri, Mike and Julie. The family was apparently in discord prior to Casey’s death; in mid-May, Mike and Julie filed a missing persons case with the Santa Monica police department saying they could not locate their father. At that time, Kerri was fighting with Jean over control of his care.

After Kasem died, news broke that his body had been taken from the Washington state funeral home and a judge awarded Kerri a temporary restraining order preventing Jean from removing his remains or having him cremated before an autopsy had been performed. Kerri hired a private investigator who says the body has been moved to Montreal, the hometown of a man that Jean has allegedly been involved with for the past two years.

A mess, right? And they haven’t even gotten to the money yet!

A little advance estate planning could have helped prevent this scenario, which is not uncommon when an older man with children from a prior marriage takes a second, significantly younger wife.

A recent WSJ Marketwatch.com article outlined four estate planning tools that could have helped head off this disaster:

Revocable trust. Placing assets in a revocable trust can help protect the trust owner’s wealth transfer wishes, and provides the flexibility to make changes as long as the trust owner has the legal capacity to make those decisions. Upon the owner’s death, the assets are dispersed as outlined in the trust without having to go through probate. A trust is also more difficult to contest than a will.

Life insurance. A life insurance policy can be a good way to provide for a surviving spouse while leaving the rest of the estate to children from a previous marriage, or vice versa.

QTIP trust. A qualified terminal interest property (QTIP) trust is used to set aside assets for a surviving spouse’s benefit while that spouse is alive. After the surviving spouse passes, the remaining assets in the trust are passed on according to the trust terms.

Family meeting. Having a family meeting so that everyone knows their beneficiary status and what will happen to the estate after the estate owner dies is a good way to head off conflict. An estate planning attorney can mediate these meetings, which is usually advisable when there is a potential for conflict.

One of the main goals of my law practice is to help families like yours plan for the safe, successful transfer of wealth to the next generation without conflict or court involvement. Call my offices today to schedule a time for us to sit down and talk about your family estate planning needs so we can identify the best strategies for you and your family to ensure you provide a legacy of love and financial security.

A simple will is one of the most basic California estate planning documents there is, and everyone over the age of eighteen should have one to make sure that there is no question about what would happen to their assets (and kids) if something happened to them. But there are some cases when having a trust in addition to a will is imperative; here are six of them:

Avoiding probate or conservatorship. To carry out instructions in a will, a probate must be opened in the county where the decedent lived. That means your family is stuck dealing with the Court if you get hospitalized or die. As the old joke among attorneys goes, where there’s a will, there’s a probate. A trust, on the other hand, bypasses the probate process completely; saving the people you love time, money, privacy, and emotional energy.

Providing for a person with special needs. If you have a child or another dependent with special needs, a trust commonly known as a Special Needs Trust can protect assets for a special needs person without jeopardizing their qualification for government benefits. That’s a big deal. A will only allows you to transfer assets to a special needs person, but does not provide any protection for those assets.

Privacy. Since a will undergoes probate in California courts, it becomes a matter of public record. That means creditors, predators, and opportunists will all be on notice your loved ones are receiving assets. A trust is totally private.

Blended families. If you are part of a blended family, a trust can give you flexibility to ensure children of prior marriages are provided for in exactly the way you want.

Out-of-state property. If you own property in a state other than California, you can more easily transfer ownership via a trust than through a will. Transferring out-of-state property through a will usually means multiple probates in multiple states which translates into additional legal expenses, time, and emotional energy being sucked from those you love.

Asset protection. If you want the assets you leave for your loved ones to be protected from creditors, bankruptcy, and divorce, you want a trust. That kind of protection is a gift only you can give your loved ones. They cannot easily (or at all) set up that kind of protection for themselves.

If you would like to learn more about the use of trusts in California to pass on what you care about to the people you love, we should talk. Call us today.

It is important to know the difference between a Will-based plan and a Trust-based plan so you can make an informed decision about what is best for you and, ultimately, your family.

A Will-based plan is an estate plan that does not include a Living Trust to hold title to your assets. For example, our Family Plan is a Will-based plan which includes the following legal documents: Health Care Directives, Powers of Attorney, Wills and optionally, if you have minor children, a Kids Protection Plan.

A Trust-based plan, on the other hand, is an estate plan that does include a Living Trust to hold title to your assets during your lifetime and to provide for the ease of transfer of those assets in the event of your incapacity or death. For example, our Trust Plan and Wealth Plan are both Trust-based plans which contain all of the legal documents included in the Family Plan PLUS one or more Living Trusts.

So, Why Should I Care?

The practical difference between a Will-based plan and a Trust-based plan is that without a Trust in place your family would have to go through the Probate Court process to get access to your assets in the event of your incapacity or death.

Your Will indicates both WHO you want to have access to your assets and HOW you want them distributed, but it does not keep your family out of Probate. Going through Probate (or guardianship in the event of incapacity) is expensive, time-consuming, totally public and completely unnecessary. But that’s what happens when you have only a Will in place instead of a Trust.

When you do have a Trust in place, there is a bit more work for you to do upfront because you need to ensure all of your assets are properly owned by the Trust throughout your lifetime (and insurance beneficiaries are designated to the Trust), but we are here to assist you with that (or even take care of it for you, if you prefer).

And, with our regular trust review process or valuable membership plan, we monitor your assets and ensure they are owned in the correct manner throughout your lifetime while also making sure your plan stays up to date as your life, your assets, and the law changes.

How Do I Know Which Plan Is Right For Me?

My process begins with a Family Wealth Planning Session. And because I want every interaction between us to be extremely valuable to you (whether you need a Will-Based Plan, a Trust-Based Plan, or no plan at all), I’ll send you a comprehensive information packet with homework for you to complete before our Session together so you can gain the most from your time with me.

I’ll review the homework you complete before we meet so we can invest our full time together examining your specific situation and assessing whether a Will-Based Plan or a Trust-Based Plan makes the most sense for you and your family.

I guarantee you will be heard, cared about, informed, educated, and empowered to make the best decisions for the people and things that matter most in your life.

If this is a conversation you’re ready to have, we should talk. Please call me.