Asset Protection Planning
Asset protection planning is proactive legal action that protects your assets from future creditors, lawsuits or judgments. Such action involves a series of legal and lawful techniques that can deter a lawsuit, provide settlement negotiation power, and help prevent the seizure of your assets in the event of a judgment. There are many different legal vehicles and business entities through which asset protection can be arranged, with different levels of risk and complexity.
Many businesses and professions carry unique risks that insurance alone cannot protect against. The practice of medicine is a good example, as malpractice premiums are expensive and insurance does not cover many claims. Similarly impacted are real estate developers, builders and small business owners who face the risk of business litigation and who often are required by banks and others to personally guarantee business loans and debts.
Over the past decade, we have represented doctors, real estate developers, corporate directors and officers and small business owners who face unique risks and are often the targets of lawsuits and claims. We know and understand the unique risks your business faces, and can help you develop strategies to best shield your assets from these risks.
There are many different asset protection tools which vary in expense, inconvenience, risk, complexity, and level of protection. If you are concerned about protecting and shielding assets from potential claims down the road we will work with you to decide which steps you want to take in your personal asset protection planning.
Probate is a court process by which the estate of a deceased person is identified, collected, administered and distributed under the supervision of the court. A probate is generally required to administer the Will of a deceased person. Probate is also required when someone dies without a Will, Trust or other form of estate planning. The probate process usually takes a year or more. Through this process the court determines the validity of any Will, the heirs and beneficiaries of the deceased person are notified, an executor or administrator of the estate is appointed by the court, the estate is inventoried and appraised, and creditors of the estate and of the deceased person are paid. Assets may be sold if needed to pay creditors or to distribute cash to the heirs or beneficiaries. When this process is completed the remaining assets are distributed to the heirs or beneficiaries. The amounts of attorney’s fees for an ordinary probate are set forth in the California Probate Code and are a percentage of the value of the estate. This statutory fee covers the usual and ordinary aspects of a probate. Additional fees may be granted by the court for work on matters which are not common in every probate. These are called extraordinary fees and are usually calculated based on the hourly rate of the attorney and the amount of time spent on the work. Attorney’s fees are paid from the estate of the deceased individual after court approval, generally at the time the estate is distributed. There are additional expenses for court filing fees, appraisals and other costs which can be estimated in the initial conference.
When assets of a deceased individual are held in a trust, the probate (court) process is generally not required in order to administer the trust estate and distribute the trust assets. The successor trustee has the responsibility to administer the trust without court supervision and to distribute the trust assets according to the terms of the trust.
Successor trustees who have taken over administration of a trust after the death of a parent or other relative often desire assistance from an attorney to be sure they can properly carry out all of their duties. A trustee generally has a number of duties including the following:
1. The duty to notify all trust beneficiaries of the death of the settlor/trustor, the place of administration of the trust and their right to obtain a copy of the trust.
2. The duty to identify, collect and protect the assets of the trust.
3. The duty to keep assets of the trust separate from his or her own personal assets.
4. The duty to account to the beneficiaries of the trust, keeping a record of all receipts and expenditures as well as the sale or other
disposition of trust assets.
5. The duty to pay all trust expenses, including taxes, as required by the trust or by law.
6. The duty to administer and distribute the trust assets according to the terms of the trust document.
If you are a trustee or successor trustee and need assistance administering or distributing a trust, please call. Our fees for such services will be calculated based upon the time we spend on your matter.
Probate and Trust Litigation
Probate and Trust litigation encompasses a variety of different areas, usually consisting of legal disputes about issues related to aging and death or the administration of assets after death.
Wills and Trusts, estate planning, and the probate process are supposed to provide an orderly means to hand assets down to the next generation in a way that accurately reflects the wishes of the deceased person. However, there are times when a Trust, Will or the probate process does not work as intended; or when a Trust or Will is created by a person who lacks capacity to know what they want because of physical or mental health (such as dementia); or a person is coerced into creating a document through excessive persuasion that overcomes his or her free will. In those situations, a Will or Trust may be able to be contested.
Trust, estate, and probate litigation is a complicated area of the law. Trust and Will litigation cases may require multiple petitions and complaints (e.g. lawsuits) on subjects such as capacity issues, undue influence claims, creditor’s claims, and probate procedures. A single case can have all of these aspects, and more. To successfully represent you in this type of case, an attorney must have thorough knowledge of estate planning and the administration of trusts, wills, estates, and probate; and must also have litigation experience in motion practice, discovery, and trial.
We have both estate planning experience and litigation experience and can handle all aspects of a Probate or Trust dispute from filing up through a trial. Some of the common issues that arise in trust and estate litigation that we have experience in include actions to invalidate Trust and Will Documents due to Undue Influence or the Lack of Testamentary Capacity. Other common types are actions against Trustees and Executors for improper actions, breach of their duties, or a failure to account.
If you have any type of dispute involving Trusts, Wills, or estate or probate litigation, please call and schedule an appointment. We can advise you on your options and represent you in negotiations or court.
Will and Trust Contests
A will contest is a formal objection raised against the validity of a will, which contends that the document does not reflect the actual intent of the testator (person who made the will). Likewise, a trust contest is a formal objection raised against the validity of a trust, which argues that the existing document does not accurately reflect the intent of the settlor (person who made the trust). There are typically two classes of persons who are eligible to contest the validity of a will or trust: (1) any beneficiary (those who are named in the will or trust) or (2) Those who would inherit from the person making the will or trust if the document was held invalid by a court. Evidence to support these kinds of claims can include that relating to lack of capacity, fraud, and undue influence.
Will and trust contests are often complex and involve medical and legal experts in order to prove claims. Our office has experience in litigating (through trial if necessary) disputes over the validity of a will or trust on the grounds of lack of capacity, fraud, and undue influence.
Estate Planning, Probate, and Probate Litigation
Wills and Trusts
We offer a variety of estate planning services at flat fee rates. The rates are determined by the nature of the estate planning services selected. Our rates for different estate planning services and for different types of Wills and Trusts are set forth in our Fee Schedule. At your initial estate planning conference we will discuss the difference between Wills and Trusts, the different types of estate planning services offered, and will help you determine a plan that is right for you. Before coming to the initial conference it is helpful if you do the following:
1. Complete our estate planning questionnaire either for a Married Couple or a Single Person, along with the financial information (Balance Sheet) and bring the completed questionnaire and balance sheet with you to the conference.