What to Expect During a Probate or Trust Administration in California

If you have been named the executor of a will or the trustee of a trust and the time has come for you to perform the duties of executor or trustee, you may be asking yourself, “What in the world have I got myself into?!” While it may all seem a bit overwhelming, you job is rather straight forward. It is your responsibility to locate, maintain, and ultimately distribute the assets of the estate according to the terms of the will or trust document.

Step One: Inventory

One of your first jobs will be to take an inventory of all the estate property. This means that you must diligently go through records, bank statements, past tax returns, etc. to locate all the decedent’s personal and real property that is to be administered through the probate or trust administration.

Step Two: Proper Management of The Assets

Once you have figured out exactly what assets are there, you must properly manage those assets. This means that you must keep very good records, make prudent investments, and keep the estate assets separate from other assets. In general, there can be a lot of restrictions on what you may and may not do with the estate assets. You should not spend any of the money from the estate unless you have discussed it with an attorney and/or have a court order to do so. You should also make certain that certain assets are properly insured in case of a loss. If you do not follow all the proper policies and procedures, you can be removed as the administrator of the estate or the trustee, and you may even be held financially liable by the beneficiaries for any mismanagement of the estates assets. It is important to have an attorney on your side that will guide you through this process.

Step Three: Administer the Estate

There are legal notices that should go out to heirs at law and even creditors, whether you are administering a trust or a probate. Additionally, you may be required to sell real or personal property and make distributions of the estate assets to the beneficiaries. This process is fraught with pitfalls that you may innocently fall into without the guidance of an experienced estate attorney. The California Court system agrees and includes in the “Duties and Liabilities” for the probate administrator the instructions “When in doubt, contact your attorney.”

If you are faced with a probate or trust administration, we have a team of experienced attorneys and legal staff that are on standby waiting to answer your questions and ensure that you handle your duties properly. Contact us now for a complimentary consultation to see how we can help you navigate though the administration of an estate.

5 Must Have Estate Planning Documents

AUG 11, 2015  – 1:30pm ET

In order to implement a careful estate plan for their clients, advisors must ensure that certain documents are in place.

CEO Tony D’Amico of the Fidato Group, an RIA in Strongsville, Ohio, often tells clients about a couple who did not have the essential estate planning documents before they became his clients. The husband was starting to become forgetful.

“My advice early on was to get their estate planning documents in order,” says D’Amico. “Thankfully, they did.” Later, when the husband had to be put into an assisted living center, they were well prepared; his wife had signed on as power of attorney for his financial and health care matters.

Here are the five crucial documents that estate planning professionals agree are needed for a successful plan.

1. Will

The fundamental estate planning document is a will, which establishes the individual responsible for administering the client’s estate, as well as the beneficiaries. Without this document in place when the client dies, state intestacy statutes will take effect and create an estate plan on behalf of the client, which may not be what the client had in mind.

“If no one under the statute can be found, the decedent’s assets may end up going to the state,” warns Kirsten Waldrip, associate professor of estate planning and taxation at the College for Financial Planning in Denver.

2. Durable General Power of Attorney

A durable general power of attorney authorizes someone to act on a client’s behalf in financial and personal business and tax affairs, in the event that the client is incapacitated and not able to make such decisions for him or herself. If the power of attorney is “durable,” it remains effective through the client’s subsequent incapacity, explains D’Amico. It ends with the client’s death.

3. Health Care Proxy

Another basic document that should be included in estate plans is a health care proxy. By executing this document, the client appoints a person to act as an agent for his or her medical decisions if a time comes when the client is unable to make such decisions, according to Waldrip.

For example, “If the principal is under anesthesia and the doctor requires an immediate decision as to treatment, an agent under a medical power of attorney may make such a decision,” Waldrip says. “It’s important the principal and agent discuss the principal’s wishes.”

4. Living Will

Unlike the powers of attorney documents, a living will does not appoint a person to act on behalf of the client. Instead, a living will documents a client’s wishes about being kept alive “in case of a terminal condition or a persistent vegetative state,” says Waldrip.

In some states, the operative document is the living will while in others the courts will only enforce the health care proxy. In either case, it is common to have both prepared since the living will provides guidance to the health care agent on the patient’s wishes.

5. HIPAA Authorization

Generally, a medical power of attorney will include a provision, known as a HIPPA authorization, under the Health Insurance Portability and Accountability Act, granting an agent access to the client’s medical records. Without this specific authorization it is unlawful for a health care provider to disclose health-related information to a third party.

Without these five basic estate planning documents, D’Amico warns, “things can become difficult and stressful.”

Bruce W. Fraser, a New York-based financial writer, is a contributor to Financial Planning and OnWall Street magazines. 

This story is part of a 30-day series on estate planning strategies.