Proper Steps To Amend A Trust

First, only a revocable trust may be amended, and that power must appear in the trust document, and identify what party or parties have the right of revocation and amendment.

Normally, it is the settlor or settlors (sometimes referred to as the trustors or grantors) who have the power of amendment.

Even then, their power may be limited to certain assets or sub-trusts within the trust.

Thus, the first thing that must be done is to review the trust document for the terms concerning amendments to the trust.

Second, the amendment must be made in a proper legal writing.  Just as the trust was created by an appropriate legal document, an amendment must follow the same requirements.

There are 2 kinds of documents typically used to amend a trust, (1) the amendment and (2) the full restatement.   A qualified estate planning lawyer will use both methods, depending on the circumstances.   

Failing to keep the trust up to date through a proper amendment will result in unintended consequences due to the fact that the changes that the settlor wants in the trust will not be enforceable.

Oral instructions to the successor trustee, post-it notes, line outs, and hand-written revisions may fail to amend the trust.   

Dwight Edward Tompkins,
California Estate Planning Lawyer,
Orange, California. 

Unintended Consequences of the Failure to Plan Your Estate

One the unintended consequences of failing to plan your estate is that family members you detest may end up with your estate, or a portion of it.

Consider the story of the estate I handled a few years ago.  The decedent had no will and no living trust.  He was a widower, and he had no children or issue.

His heirs were 14 nieces and nephews, including a nephew who the decedent did not like.  This nephew was a playboy goof off, and the decedent did not like the way the nephew conducted his life.

That nephew received the largest share of the estate.

With a living trust, or at least, a basic will, the decedent could have omitted the nephew and directed his estate to the family members of his choice.

In California, a living trust is a "must have" estate plan, not only to control your estate and who gets it, but keep the estate out of the court system.

Dwight Edward Tompkins,
Estate Planning Lawyer,
Orange County, California. 

What is a Living Trust? (Spanish)

Dwight Edward Tompkins,
Lawyer - Living Trusts,
Orange County California.

Naming Guardians for Your Minor Children

Naming a guardian for your minor children is one of the most important decisions in estate planning.  

This nomination is made in your Will, even if you have chosen to utilized a revocable Living Trust as the primary estate plan.  

Sometimes I consult with single women who have minor children, and the father of those children are not active in the life of the child.  

Although the mother cannot take away the rights of the father, it is still a good idea to name a guardian in the Will in the event that the father fails in his responsibilities, or that the court finds the father unfit to be in charge of the child.

Naming a guardian also helps to eliminate family tugs of war over the custody of the minor child.

 Dwight Edward Tompkins,
Estate Planning Lawyer,
Orange, California.    

Forget About What Happens in Other States

I frequently tell people that California is a "living trust state", because the revocable, living trust is the preferred method of estate planning for most people living in California.

The alternative, the traditional will is not the favored method of California estate planning.  This is because of the long delays in the court system, coupled with the high costs of probate, that consume on average 6% to 8% of the gross estate.

Those high costs cannot be avoided because the court fees and attorneys fees are set by statute.

In other states, a traditional will is the preferred estate plan.  This is because the fees and costs are minimal and the average probate is less than a year.

Television news shows and financial network shows that come out of the East and the Midwest often paint a different picture than exists here in California because the "experts" that come on those  shows are lawyers and other professionals who are talking about what happens in other states.

If you live in California and own real estate (even if the bank really owns it) or you have combined assets over $150,000, you must have a revocable, living trust.

Dwight Edward Tompkins,
California Estate Planning Attorney.   

The Job of Trustee of a Special Needs Trust

The trustee of a special needs trust has a complex job, which requires the trustee to understand the law and rules of government benefits, as well having the duty to invest funds appropriately.  Add the taxation requirements to prepare and file fiduciary tax returns, the trustee of a special needs trust has a multi-level job.

This is why it is so important to have a team of advisors to assist in the administration of the special needs trust.  In addition to the attorney who can advise the trustee concerning the law, it is critical for the trustee to engage a Certified Public Accountant, who understands the tax rules concerning irrevocable trusts in general, and special needs trusts, in particular.

Another member of the team is the financial advisor who will make sure the trust funds are properly invested to provide safety of the investment, while garnering a reasonable return.

These professionals must not only work with the trustee, but with each other to make sure that the trust meets all of its legal, tax, and financial requirements.

Dwight Edward Tompkins,
Orange County Estate Planning Lawyer.    

The Complex Job of a Probate Attorney in Orange County

Think of getting a probate representative as similar to hiring a babysitter to watch over the kids while the parents are away. The parents grant the babysitter authority over the children, just like how a probate court (or the decedent himself) bestows authority on a person to represent the late real estate owner. Probate, or the proving of a will, comes before any real estate property can be distributed to the intended recipients.

A probate attorney in Orange County explains that the representative can either be assigned, as stated in the will, or appointed by a judge if no such document is available. The former is called an executor, while the latter is called an administrator. Real estate law demands the presence of a personal representative in court for transparency. If the property is worth more than $50,000, it has to be probated, except for a few exceptions such as if the deceased's spouse is still alive, and the spouse is on title.

Under the former law, the value was originally pegged at $20,000, but was brought up to $50,000 as per a law that was put into effect in 2012. The reason behind the increase was to keep more properties out of probate. This way, the government hopes to reduce delays and inconveniences.

It is the responsibility of the executor to inform the beneficiaries or recipients of the real estate about the property being probated. This will allow the beneficiaries to discuss how to manage the land now that the original owner is gone. Any contests to the will must be performed within a limited time before the payment phase.

The executor has power over the real estate in question over the course of the probate, though not to the point that he can own it unless specified in the will. He must ensure the safety of the property, making sure that no party takes advantage of its neutrality. He can also perform a number of functions such as paying taxes and assessing claims without court permission.

While California probate has grown more straightforward over the years, you must still know what to do. This is where a probate attorney in Orange County like Dwight Edward Tompkins comes in. High-value real estate properties are complicated to handle alone, which is why a probate lawyer is definitely worth considering.