Probate Tip #1:  Hire an Experienced Probate Attorney

It may be tempting to navigate probate alone, but a good probate lawyer will be able to make the entire process more efficient.  The attorney’s expertise will guide you steadily in the right direction and keep you on track for closing probate as quickly as possible.

Probate Tip #2:  Notify Creditors Quickly

Part of the probate process is making creditors aware of the death.  As long as the probate is open, creditors can come looking for payment, which can significantly slow down the process.  Instead, it is better to get everything lined up as quickly as possible to be able to move on to the next phase.

Probate Tip #3:  Get an Appraised Inventory

As the executor works with the estate, he or she should be creating an inventory of its assets and getting appraisals when appropriate, whether on personal effects, real estate, or other assets.  The courts may need to be involved with the process, so discuss it with your Menlo Park probate lawyer.

Probate Tip #4:  Don’t Miss Deadlines

There are specific deadlines set for when documents need to be filed.  Missing these deadlines will lead to the need for more court appearances (i.e. time, hassle and more money), as well as keeping probate open—and the estate vulnerable—for that much longer.

Probate Tip #5:  Keep Accurate Records

The creditor claim period can vary from state to state, which is another excellent reason to work with a local probate lawyer in Silicon Valley.  Once this period has ended, the executor will file the final report and accounting.  Having these numbers ready to go and double checking them for accuracy helps get the estate closed faster.

There’s no doubt that seeing an estate through probate offers some stress and potential confusion.  A good probate lawyer in the Bay Area will minimize this stress, and utilizing these simple probate tips can get the estate and all those connected to it through the process that much faster.

For a lot of people, a business is their biggest asset. Certainly, you want to make sure it’s protected–no matter what happens.  By planning now, you can help ensure that your business will go on to survive without you instead of falling apart because you’re no longer at the helm.

Step One:  Choose a Successor for Your Business

If you plan to retire, you will start looking for some to take over the business, but other situations can arise in which you are unable to continue to head up your business.  Having someone you trust lined up who is prepared to take the reins should it become necessary will ensure your business stays running during an otherwise chaotic time.

Step Two:  Share the Knowledge

All too often, the business owner is the only person who is privy to all of the information it really takes to make the business run.  If you’re keeping everything “in your head,” how can your employees keep things running in your absence?  It’s time to gather up operational information that others may need should they be forced to step in and fulfill your role.  This doesn’t mean you need to share trade secrets with every employee; it just means that you should at least have a good blueprint for how things work that is accessible to the person or people who will need it if the time comes.

Step Three:  Know Your Assets

It’s a good idea to understand the overall value of your business.  Creating an inventory of assets is a good start in this process.  In today’s age, many assets are not even tangible items but are digital in nature—such as web properties, online accounts, and more. Talk to a professional if you need help assessing your assets.

Step Four:  Work with a Bay Area Attorney

To solidify your ideas and ensure that you are planning within the scope of the law, you’ll want to sit down with a business planning attorney here in Menlo Park who is familiar with local laws and regulations.  Your attorney will help you draw up legal documentation that provides direction for your business when you are no longer able to retain control.  It also helps to establish your true intentions and limit the amount of challenges others may face later down the road.

If you’re ready to get started creating such a plan for your business, call our Menlo Park business planning law firm at (650) 321-6796 and ask to schedule a complimentary planning session with the mention of this article ($500 value).

That’s why I’ve put together a list of four brief reasons that explain why you need a will…and why it must be created sooner, rather than later.  There are certainly many other aspects to consider, but these can have a great impact on the future of your estate:

Reason You Need a Will #1:  It Saves Money

There are so many financial issues that come into play once an individual has passed away, and it really does take a trained lawyer to understand them and come up with a solid game plan.  An estate planning attorney is able to help you take advantage of tax benefits that you might not have otherwise known were available, as well as help you save an incredible amount of money that can be passed on to your heirs.

Reason You Need a Will #2:  It Protects Your Family

Not all adults have minor children, but those who do should have a will in place that names who they want to be their child(ren)’s legal guardian in case of death or incapacitation.  If you and your wills lawyer in the Bay Area have not formally and legally laid out this information, then it will be up to the courts to determine who will raise your children in your absence.  Keeping your will updated also protects other family members, as you can determine what goes to whom, rather than having family members cause fights and drama over your estate.

Reason You Need a Will #3:  It Keeps Real Estate Intact

Do you own a house or other property?  If so, and you pass away without a will, the courts will likely pass co-ownership of that property to your heirs.  What happens when some of your heirs want to keep the property and others want to sell it?  What if you specifically want a certain heir to inherit your property?  What if you don’t want your heirs inheriting the property and would rather leave it to someone outside the family instead? Without a will, the answers to all of these questions will be completely out of your control.

Reason You Need a Will #4:  You Might Not Be Allowed to Do It Later

One of the requirements of a valid will is that the person creating it is of “sound body and mind.”  If you become victim of an illness or injury that brings your ability to make sound judgments into question, you may be unable to put together a legally binding will later on.  Anyone who does not agree with your decisions can simply contest the will, saying that you were not competent to make those choices; and the whole thing could end up in court.

Of course, there are many, many other reasons to meet with a Bay Area lawyer and have an estate plan designed that addresses your unique legal and financial needs.  We’re happy to help you get started with the process, so if you have further questions about wills here in the Bay Area or you’d like to move forward protecting the people and things you love, please give our office a call at 650-321-6796 and ask to schedule a free Wealth Planning Session with the mention of this article ($500 value).

When can you file a claim? If you have a “small claim” ($5000 for companies and $7500 for individuals) you may use small claims court.  If your claim is more than the maximum allowed, you can sue in higher court for the full amount, or you can sue in small claims court and give up your right to recover anything in excess of the maximum.  Because lawyers are usually used in higher courts, consider what your legal fees will be if you choose that route.  You may be financially better off in small claims court.

The filing and serving procedure: You must complete and sign a preprinted claim form supplied by the court and pay a small filing fee.  The court will assign a date and time for the trial.  Once you file the claim, it is necessary to inform the defendant that he is being sued.  You cannot serve the defendant yourself.  You can hire a process server or the court will serve the complaint for you by certified mail for a small additional.

Rules about the defendant: You must sue the defendant by his exact legal name.  Failure to do so may make it impossible to collect your judgment.

The trial: The courts are very crowded and a number of cases will be scheduled to be heard at the same time.  You will usually be allowed 15 minutes or less to present your case.

Bring all of your witnesses to the trial.  Signed declarations may not be allowed because the defendant will not have an opportunity to cross-examine the witness.

Remember, it’s up to you to make sure the judge understands your case.

1. Prepare an outline of your presentation and practice before going to court.
2. Write down the dates and events in chronological order.
3. Bring the original and two copies of all your evidence.
4. Listen to what the defendant says in response.  Take notes, since you’ll get an opportunity to respond when he is through.
5. Make sure you can justify the amount you’re claiming is owed.  Show the judge how the numbers add up.

Judgment and appeal: If you’re the plaintiff and you lose the case, you’re not allowed to appeal.  If the defendant loses the case, however, he may appeal to a higher court, where the case will be heard all over again, possibly with lawyers involved.

While we are not allowed to represent you in small claims court, we can certainly meet with you to review your case and give you advice on how best to present your evidence.  We can also provide you with legal arguments to make your case more persuasive.  If you need our assistance with your small claims court case, call us at (650) 321-6796.

Do the San Mateo County Probate Courts Have to Be Involved?

One of the most common questions asked when someone dies without a will is whether or not the courts must be involved.  The short answer to this is “yes.”  The Bay Area probate lawyer helps to guide the estate through the process.

The probate court’s job is to ensure that the decedent’s affairs are legally concluded.  This typically means that someone is appointed to be in charge of the estate and follow through with transferring property to heirs as deemed appropriate.  In addition, court fees, estate taxes, creditors, and all other applicable costs will be paid out of the estate.  When this person is named by the courts, he or she is usually either referred to as the personal representative or the administrator.

Who Inherits the Estate?

When an estate goes into probate in San Mateo County the proper division of property is determined by the courts.  Each state can have its own laws in regards to how the property is divided, so working with a probate attorney in California is the best way to ensure you understand what applies in your case.

The most common method of distribution is for property to go to family members.  Most states, after paying the associated fees and other outstanding costs, will award money and property first to a current spouse and children of the decedent.  If this person is unmarried and/or without children, the estate will likely go to parents, with siblings, grandparents, and aunts and uncles falling in line after those.  In cases where no family members are found, the estate can become property of the state.

How Can I Avoid Probate in San Mateo County

The best way to avoid probate, of course, is to plan.  A probate lawyer or estate planning attorney in Silicon Valley can help you determine your needs and goals and get you set up with the right documentation to make sure that your wishes are outlined well in advance.  That way, you make the decisions about your estate, instead of leaving it in the hands of the courts.

When a will is “contested” that means that it is being challenged for some reason.  Fortunately, heirs can’t simply overturn your will because they’re not happy with it.  Instead, they have to show a legal reason that the will itself is invalid.  If it is found to be invalid, then the administration process changes dramatically for all involved.

Who Can Contest a Will in California

As mentioned above, a will can’t just be contested because someone doesn’t think you left him or her enough or to create more drama at an already difficult time.  Instead, it must be shown that there is a valid reason for contesting.  Those who can contest a will during the administration process include:

• Someone named in the will who feels he or should have inherited differently
• Someone not named in the will who thinks he or she should have been

One way to determine if a person has standing to contest the will is to determine if he or she would have inherited if you had died without one and your estate had gone into probate.

Reasons to Contest a Will in California

Simply being unhappy with your share isn’t enough for a court to consider a request to contest a will.  Instead, specific problems must be shown.  For example:

• The testator was unduly influenced
• The testator did not have the mental capacity to make binding decisions
• There was a mistake in the will
• The will constitutes fraud or was created fraudulently

If any of these things are found to be true, then all or part of the will can be voided.  If the entire will is considered invalid, then its administration is governed by California’s intestate laws.  If only part of the will is questionable, then that portion of the estate can be added to the residuary estate and dispersed as the will otherwise states.

No Contest Clauses

Many Silicon Valley estate planning clients work to improve the desired outcome of their wills by including “no contest” clauses.  These typically state that anyone attempting to contest your will is simply disinherited.  That may be enough of an incentive to stop someone from interfering with your wishes out of their own sense of greed or mischief.  Working with a local Bay Area wills and trusts lawyer will ensure that you are following the applicable laws for our state.

The new forms allow you to have a for-profit business which is also designed to have public or environmental goals.  Each of them accomplishes this goal using a slightly different method.

Benefit Corporations.

Benefit Corporations are formed for the general public benefit such as 1) Providing low-income or underserved individuals or communities with beneficial products or services; 2) Promoting economic opportunity for individuals or communities beyond the creation of jobs in the ordinary course of business; 3) Preserving the environment; 4) Improving human health; 5) Promoting the arts, sciences, or advancement of knowledge; 6) Increasing the flow of capital to entities with a public benefit purpose; 7) The accomplishment of any other particular benefit for society or the environment.

Significantly, Benefit Corporations must annually report to their shareholders and to the public (on their public website) how they measured up against that third-party standard.

The major difference from ordinary corporations is that the officers and directors of a Benefit Corporation can seek to provide the stated public benefits, even where doing so would have a negative impact on shareholder profits.

Flexible Purpose Corporations.

Flexible Purpose Corporations must have one or more “special purposes” that include benefiting one or more of the following: 1) the corporation’s employees, suppliers, customers, and creditors; 2) the community and society; 3) the environment.

The Flexible Purpose Corporation must also provide annual reports to shareholders and on the company website where the management discusses details of what the company has done to achieve its special purposes, what it plans to do in the future, and how successful it has been.  However, unlike a Benefit Corporation, these do not have to be measured against a specific third-party standard.

Both of these new corporate forms allow the companies who select them to have a profit-seeking business, but also to balance that profit against other goals.  While having these stated goals may be a competitive advantage in some cases, that must be balanced against the additional reporting and other requirements that these new forms have.

If you have a business idea that might fit into one of these new categories, we are happy to help you with the formation.

However, when it comes down to honoring our deepest religious or spiritual desires, many people overlook the necessity of incorporating such wishes into their estate.  When religion plays an important role in someone’s life, it makes sense that it would also be important in the legacy they leave behind.

Many estate planning attorneys from the Bay Area don’t necessarily focus a lot of their expertise on the religious aspects of planning, which makes sense.  After all, there are so many religions that it would be impossible for one attorney to be well versed in them all.  However, if there are religious preferences you would like to see incorporated into your estate plan, a skilled attorney in Silicon Valley can help you legally document the wishes of your faith.

Where to Find the Information You Need

Fortunately, there is information available to help you and your estate planning attorney uphold religious preferences in your estate planning that deeply matter to you.  Many institutions have already put together informative brochures or packets to help guide you through the religious aspect of your estate planning.  They often have sample forms that you can print and take directly with you when you meet your lawyer.

This information can also help you to become clear on what your estate planning goals are in reference to your religion.  By setting out your goals in advance, you and your attorney can then go about setting up action steps that ensure your estate plans fit in with your values and beliefs.

Some Estate Planning Areas Affected by Religion

It’s almost surprising how many aspects of estate planning are truly affected when one starts looking at them from a religious perspective.  The most obvious area, of course, has to do with funeral and burial arrangements.  Is there a specific type of ceremony or location for the service that is important in your faith?  Are there religious considerations that need to be met?  You will likely want these included in your will, as well as your Health Care Directive (living will).

A living will and health proxies can certainly be affected by religious beliefs.  For example, what is your religion’s official stance on life support, blood transfusions, or other medical acts?  If you’re unsure but want to be in accordance with the teachings of your faith, then it is up to you to learn the answers to these questions, typically before you meet with your Bay Area trusts and estates attorney.

Even the bequeathing of your estate can be directed by your religion.  Some require specific portions of an estate be left to predetermined heirs, for example.  In addition, you may either wish or be compelled to designate a portion of your estate for your particular faith community.  Your Bay Area estates lawyer can help you determine how best to do this, whether through a specific gift or by setting up a trust.

While a vacation home may have been a peaceful haven for you and your spouse throughout the years, your children may not look at the house the same way when it becomes theirs to manage and maintain.

In fact, many heirs of vacation homes are simply unable to afford the yearly property taxes and related maintenance costs.  What mom and dad meant as a blessing actually becomes a burden to the children who were not prepared to assume these new responsibilities.

And what about those heirs that live too far away to enjoy the vacation property regularly?  Should they be held just as responsible for its upkeep as siblings and cousins who live nearby and are able to use it on a regular basis?  What kind of alternative might be available for them?

This is where working with a Silicon Valley wills and trusts attorney can be extremely valuable for families that need more flexible options when passing down a vacation home.

For example, the original owners of the vacation home may choose to place the property into a trust, meaning that a trustee would manage the home, and that (as much as possible), maintenance, taxes, repairs, etc. would be paid for out of the trust.   It may even be possible for some of the heirs to be “bought out” of their share by using funds from the trust.

Another advantage of placing the vacation property into a trust is that it can help if there are family tensions at play.  The trustee can be someone outside of the family whose only interest is to preserve the property and the trust in an appropriate manner.  He or she may even determine that the property can be rented out to generate income if the trust is having trouble paying for maintenance.

It is also possible that some members of the family will simply be uninterested in the vacation property.  For this reason, your estate planning attorney in Menlo Park can set up an exit strategy that allows some heirs to purchase the shares of others, even using other assets from the estate.    In preparation for such an event, the trust can even include an exit strategy that allows for the sale of the property with proceeds going to living heirs.

The most important thing to keep in mind is that you have options, and an estate planning attorney in the Bay Area can help you put the right plans in place to protect your vacation home and the best interests of your family.

Have questions about the best ways to pass your vacation home down to the next generation? Give our Menlo Park estate planning law firm a call at (650)321-6796 and ask to schedule a free Wealth planning Session ($500 value) with the mention of this article (limited to first 10 callers per month).

Far too many people assume that their families would make the choices they would want in an emergency.  Yet everyday we hear stories of adult children, siblings or other relatives battling during a health care crisis over “what their loved one would have wanted” in that situation.

The Terry Shiavo case is a great example of this. At the young age of 26, Shiavo suffered sudden cardiac arrest and slipped into a permanent a vegetative state.    She never documented her wishes about things like feeding tubes, life support and long-term quality of life, leaving her family to battle for years over these questions in court.

Her husband eventually had her feeding tube removed claiming, “That’s what she would have wanted”. But was it really? We’ll never know because Terry didn’t make her healthcare wishes known to her closest family and friends.

But it’s not enough to just tell someone about your wishes.  You need to clearly document your preferences, too.  Remember, emotions can run high during a health care crisis, and it might be hard for your loved ones to stop life support when they desperately want you around.  Having your wishes spelled out in writing helps make these types of decisions easier for your loved ones, especially in cases when other family members don’t agree.

So in honor of National Health Care Decisions Day, I encourage you to start tough conversations with loved ones about your personal medical preferences for medical or long-term care.  Here are some important questions to consider:

• What are your thoughts on feeding tubes, life support and other artificial life saving devices?
• Is there any type of medical care you would NEVER want?
• If you were permanently disabled or incapacitated, what things would contribute or take away from your “quality of life”?
• Who do you trust to make important medical decisions if you are unable to speak for yourself?
• What are your thoughts on nursing home vs. in-home health care?  Who would you trust to manage your long-term care?

These are not the most fun conversations to have, but they will help to ensure that your most personal wishes are honored in a true medical emergency.  Talk them over with loved ones and get something in writing that spells out your wishes and the care you want if something happens to you.  If you have questions, talk to your attorney and get something in writing before an unforeseen emergency strikes.

Ready to document your most personal health care decisions for National Health Care Decisions Day? Give our Menlo Park law firm a call at (650) 321-6796 and ask to schedule a free Wealth Planning Session during the month of April.