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Bakersfield Law Blog

Are you a designated trustee? Protect yourself

Taking control and being responsible for administering a trust can be an overwhelming task. The role of a trustee is a significant one. If you fail to fulfill your duties effectively and efficiently, you may be personally responsible for any errors made during the administration process. Beneficiaries will have the right to seek compensation for any resulting losses they experience by filing claims against you in a California civil court.

A trustee has many obligations to the trust. Such obligations are also known as fiduciary duties. What are these duties? How can an attorney help you fulfill your role? What can you do to protect yourself should something go wrong during trust administration?

The importance of updating beneficiary designation

Thinking about your future means much more than considering what job you want, where you want to live, how many children you will have, where you want to go on vacation and when you will retire. While the information collected from these questions can be helpful when taking steps to protect your future, and estate plan requires an individual to look much deeper at the details of his or her life. Although many residents in California and other states associate estate planning with elderly people, this is a misconception. Additionally, a person does not need to be wealthy to enjoy the benefits of an estate plan.

Regardless of a person's age or income, when it comes to estate planning, there is one very important step that everyone should take. Whether your wills, trusts and other estate planning documents were drafted a year ago or decades ago, it is important to continually check on your beneficiary designations. This includes accounts such as life insurance policies, back accounts, brokerage firm accounts, retirement accounts and other similar accounts.

Understanding the basics of probate in California

For Californians who are preparing for the future with an estate plan, the details can sometimes be overwhelming to the point that not even the basics are fully understood. Most everyone will have a grasp as to what a will is and does. Others will know about trusts. But probate can be a matter that is a source of confusion. Knowing what probate is and how to deal with it is an integral part of creating and implementing wise estate plan strategies.

In probate, the court will supervise the assets of the person who died being passed to the beneficiaries as listed in the will. In general, there will be an executor named in the will and that person would take the initiative after the person's death and file a petition with the court to be granted appointment. The executor will subsequently take over the person's assets and pay the debts.

Woman receives eviction notice for altering property

The legal realities of being a landlord in California can be difficult to handle. Often, those who are trying to move forward with an eviction of a tenant who has violated the lease will be cast as the villain. However, landlords have certain rights if there was a violation and the tenant can be evicted if it is legally justified to do so. Of course, any landlord-tenant dispute must be based on the law. A landlord should have legal advice before pursuing an eviction.

A woman who installed a security system in her apartment received a notice that she had to remove it. Since there have been numerous reported burglaries across the state recently, she sought an extra layer of protection for her family and refused. She has lived at the residence for eight years, but her lease says that she is not allowed to alter the property. She sent a letter requesting that the security device be allowed to stay. She was told that she had to remove the device and fix the wall by the middle of June or she will face eviction. She is complaining that there are unlocked gates at the complex and she is concerned about safety issues.

Can my eviction case be settled through mediation?

When a California landlord is seeking an eviction of a tenant and the tenant gets the eviction notice, the concerns can be overwhelming. A dispute that has escalated to the point that the landlord and tenant are butting heads might be viewed as needing a judge or jury to settle it. However, there are times when mediation might be preferable. Even if the sides have a trial date, there is a chance that mediation can settle the matter to the satisfaction of all involved and avoid the need to go to court.

With mediation, the sides negotiate and try to come to an agreement. If they are unable to do so, then they can still go to court. There is no downside to at least trying to settle the matter via mediation. Often, a disagreement between a landlord and a tenant is a simple misunderstanding. It could be due to many issues such as repair work, rent, a security deposit, or something less serious. A disagreement can quickly rise in tension until one side is not listening to the other.

Estate planning documents everyone should consider

For many California residents, preparing an estate plan can feel like a daunting task. It is understandable. There are a lot of things to consider -- such as what estate planning documents are actually necessary -- and figuring it all out can be overwhelming.

The good thing about estate plans is that they are completely customizable to your needs. Yes, there are standard forms, but an attorney can help you make them truly yours. It is all about what you put in them and how you write them. So, what estate planning documents should one consider?

Strategies for a successful estate plan in California

Having an estate plan is a wise choice for Californians whether they have significant assets or their portfolio is one of more modest means. The estate plan can detail how asset distribution will be handled, what the heirs will receive and more. Strategies for a successful completion of an estate plan are extensive, but there are certain basic steps that everyone should take.

Family disputes often arise over the assets. This can stem from other issues that the family members never fully dealt with or it can be specifically over the assets after a loved one has passed. There is also the possibility that the testator had more than one marriage and the various extended family members are expecting to receive a share of the estate. Having a comprehensive estate plan can avoid any rancor. Even if family members are not happy with the doling out of the assets, the document is there to detail what is given to whom.

The perils of failure in will planning in California

People young and old, rich and poor and anywhere in between in California often fail to move forward with organized will planning. Admittedly, it is a difficult issue to come to grips with. Mortality can be hard to accept. However, it can be costly and problematic for loved ones to avoid having an estate plan. Wills are an essential part of that and can head off family disputes over property after a person has died. Understanding what happens if a person dies without a will can be useful to deciding whether to craft one or not.

Dying without a will is also referred to as "intestate." When this happens, the state law will decide on the estate's beneficiaries. There is a prevailing belief among laypeople that assets will go to the state if there is no will. That is not the case. A person who is married and does not have a will means that all the community property assets go to the spouse. The spouse will also receive some of the separate property assets as well.

Does a tenant have rights if the residence is foreclosed upon?

Tenants are sometimes caught in the middle if the property is foreclosed upon in California. They might have a legal lease and the right to stay in the dwelling, but the situation is muddled because the landlord is facing foreclosure. People are frequently concerned about what to do in such a circumstance. This is a special situation when it comes to eviction and those who are confronted with it must be aware of their rights.

If the rental unit is foreclosed upon, the lease must be honored by the new owner of the property. However, if it is a month-to-month circumstance or the people who are living there are the owners who are having the property foreclosed upon, the new owner can evict them. In such a case, the new owner can do the following: offer the tenants a new lease or rental agreement; or start the proceeding to have them evicted.

Understanding how trusts can help when incapacitated

Drafting estate planning documents is an important part of having the proper plans in place for the future, especially in the event of becoming incapacitated. Many people harbor a fear of what will happen to them and their assets without the protection of certain types of trusts. A living trust is useful in such a circumstance. Knowing its intricacies is integral to deciding if it is the right alternative. A person who is his or her own trustee should have a successor trustee in the event of incapacitation. If there is no living trust, another person would have to manage the assets.

How the assets are allocated would determine who manages the assets. If the assets were separate or community property and if there was a durable power of attorney will be essential to this process. A person who is married will have the assets that were acquired during the marriage viewed as community property. However, property that was owned before the marriage or items that were a gift or inheritance will be separate property. Community property can be managed by the spouse if he or she is deemed competent. A person who is not married or has separate property would be managed by an attorney-in-fact with a durable power of attorney. Failure to plan for this potential eventuality will leave the assets in the hands of the probate court, otherwise known as a conservatorship.