Serving clients in El Dorado County and throughout the greater Sacramento region
Through a variety of Estate Planning services, we help clients plan effectively to provide for loved ones, avoid future conflicts, address long-term care issues, and ensure that the clients’ wishes will be respected. You can count on Ellerman Strand to provide expert guidance in the following practice areas.
Careful estate planning allows you to avoid the probate process, plan for incapacity, provide for loved ones who are minor children or who have disabilities, protect spouses and beneficiaries in blended families, provide gifts to charity and minimize taxes.
Through the use of various tools such as Trusts, Wills, Powers of Attorney and Health Care Directives, we help to ensure that your estate is distributed, and that you and your loved ones are cared for, pursuant to your wishes.
Items to Consider Before Your Appointment
The following are several topics which you should consider prior to meeting with the attorney to discuss your estate plan. They may not all apply to your situation. This is intended to assist you in preparing for your meeting, but it is not necessary that you know the answer to each of these questions before your appointment.
GUARDIANS FOR MINOR CHILDREN
In the event of your untimely death, who would be best suited and most capable of raising of your minor children in the manner you would want them raised? A brother, sister, or a close friend may be a better choice than a grandparent. Factors to consider would include: ages of proposed guardians and ages of their children, ages of your children and number of them still minors, and health and financial situation of all parties. Decide on alternative choices, in the event your first choice is unwilling or unable to serve. If you name a couple as guardians and one of them dies, would you want the surviving co-guardian to act as sole guardian? What if they divorce?
EXECUTOR OF THE ESTATE
If all or part of your estate passes through probate, who do you trust to handle the details of paying your debts and death taxes and distributing the remaining assets to the beneficiaries named in your will?
Is it important to you to avoid probate? Do you want to make sure that your assets are preserved for beneficiaries who cannot be changed after your death or who may be different from your spouse's beneficiaries (such as children from a prior marriage)? Is a Will enough for you, or would you be better served by establishing a trust?
If you do set up a trust, either in your will or a separate living trust, you will need to name a trustee to manage investments, pay taxes, make distributions, etc. In the event he or she dies, you will want to provide for one or more successor trustees.
DISTRIBUTIONS TO CHILDREN
If your children or other beneficiaries you name are very young, you may want to consider holding their assets in trust to preserve and protect them until your young beneficiaries are mature enough to handle the assets on their own. In the meantime, the trustee can manage the assets and use them for the benefit of your young beneficiaries as you have directed, such as paying for their education or their health needs.
Many people like to distribute a portion of the estate at several different times; e.g., 1/3 at age 21, 1/3 at age 25, and 1/3 at age 30; or ½ at age 30 and ½ at age 35, etc. In addition to these periodic distributions, many people want to have the principal of the trust available to their children for various other purposes such as a down payment on a first home, the purchase of a business, payment for a wedding, etc. These distributions are generally left to the discretion of the trustee. Are there any distributions of this kind that you want to authorize?
In the unlikely event that you and your children die together, and none of the beneficiaries you have name are then surviving, how would you want your estate to pass? Would you want it to go to next of kin, or to friends or family (like your siblings or nieces and nephews) or to a charity?
If you become incapacitated (unable to handle your personal and financial affairs), who do you want to name to handle your affairs on your behalf? Are there any specific instructions or limitations on powers that you want to have in force?
If you are unable to make medical decisions (including life support decisions) for yourself, who do you want to make those decisions for you? What instructions do you want to give them?
Revisit your estate plan when your circumstances change. This may include a marriage or divorce, birth of a child, or loss of a loved one. Even if your circumstances don’t change, laws may change over time, so you should review your estate plan every few years to be sure it still meets your needs.
When you or a loved one loses capacity, and no plan is already in place that names a person who can step in and make decisions for that individual, there may be no option but to go to court and have a conservator named.
WHAT IS A CONSERVATORSHIP?
Conservatorship is a court process in which a judge appoints a responsible individual to care for another adult who cannot care for themselves or their finances.
Our attorneys are experienced in representing individuals, families, and professional fiduciaries in establishing and maintaining a conservatorship. Whether we represent you as the conservator, conservatee or petitioner, our experienced attorneys and staff will guide you, step-by-step, through the conservatorship process.
WHAT IS A PROBATE?
Probate is a court-supervised action to distribute a person’s estate if they die without a trust in place. People are often surprised to learn that a probate is required not only for individuals who did not create an estate plan, but also for those who have a Will, but not a trust.
WHEN IS A PROBATE REQUIRED?
For decedents who died prior to January 1, 2020 the California Probate Code provides that probate estates of $150,000 or less do not need to be probated. As of January 1, 2020 the threshold amount is $166,250. If the estate consists of assets in excess of the prescribed amount a probate is necessary. If the assets in the decedent’s name are less than the probate threshold, there are other steps that can be taken to effectuate a transfer of the assets to the decedent’s successors.
HOW LONG DOES A PROBATE TAKE?
Probate can be daunting, as it is a lengthy process with numerous steps. The probate process usually takes at least a year to complete, and often longer if there are complicated assets or issues with the heirs.
WHAT TYPES OF FEES ARE ASSOCIATED WITH A PROBATE?
Ordinary attorneys fees and executor fees in a probate are based on a percentage of the value of the assets that pass through the probate. That percentage is set by statute. Additional fees may be charged as extraordinary fees if there is real estate to sell, litigation with beneficiaries, or other complex issues that require extraordinary efforts on the part of the executor or their attorneys. In addition, there are various fees that must be paid to the court or to third parties such as filing fees to the court, publication fees to the newspaper, and fees to pay the probate referee.
HOW CAN WE HELP?
Working with one of our experienced attorneys can help make this process less intimidating, as we can guide you through the necessary steps. An executor or administrator (an executor of a will; an administrator if there is no will) is appointed by the court as the personal representative of the estate. The personal representative will gather the assets, pay the debts and expenses, and distribute the remaining estate to the beneficiaries.
Special Needs Trusts & Planning
Our special needs planning practice is a specialized area of law in which our attorneys will create an estate plan and/or special needs trust designed to protect public benefits for individuals with special needs while providing for their quality of life. Special needs trusts may be created by an individual with special needs, parents of a child with special needs, other third parties or by the court. Our attorneys will help you assess what type of trust and what process is most appropriate and beneficial and will guide you from the trust’s establishment through its administration.
WHAT IS TRUST ADMINISTRATION?
The process where your named successor trustee organizes your assets, pays off your creditors, and eventually distributes your estate to your beneficiaries in accordance with the terms of your trust.
WHY SHOULD I HIRE AN ATTORNEY?
A trustee has many duties and obligations that need to be fulfilled before a trust can be distributed. Our attorneys are there to answer your questions and guide you through the process and to help protect you from potential liabilities. They will provide you with information about your obligations, prepare required notices and other documents, help you navigate issues with beneficiaries, coordinate the various tax returns that may be required, and prepare documents needed to transfer assets to beneficiaries.
In our mediation practice, we guide parties to a resolution of their conflict without going to court. Our experienced mediators work with parties to find the resolution that works for them and to avoid the need to enter court litigation, where the outcome is out of the parties’ hands.