Ask Annette

What is a Durable Power of Attorney?

“Annette, what is a Durable Power of Attorney for Property Management?
Do I need one of these?  I am a small business owner a homeowner and not sure if I need this. “

A durable power of attorney for financial management allows an individual to provide for continuing management of their assets in case of future incapacity.  The “durable” means that the power of attorney continues to be effective despite the incapacity of the person who signed the power of attorney.  Very old powers of attorney may not be durable, so they are no help if someone becomes incapacitated, which is when you really need them to be effective.

 There are different ways that the “power” becomes effective; either immediately or on the incapacity of the person who executed the power.  Everyone over the age of 18 needs a power of attorney for financial management and an Advance Health Care Directive.

 Who could handle your affairs if you became incapacitated?  If you do not have papers in place, the court will appoint someone to help you and the court will supervise that help, in the form of a conservatorship.

Stay Out of Probate Court!

One of the greatest gifts you can give the Valentines in your life is to keep them out of probate court.  Probate court can be time consuming, emotionally upsetting and expensive.  Not to mention siblings can be vicious to each other when parents are not around to supervise.   I have an ongoing probate where my client is doing a great job as administrator and her siblings personally sued her anyway.  It is just costing them a fortune in attorney fees.  The case was frivolous.

If you have a trust please make sure your bank accounts, money markets and certificates of deposit are in the trust.  Do not put your IRA’s in the trust, instead name your beneficiaries and name the trust as the very last beneficiary after your spouse and children.

Is your parent’s estate plan up to date?  If you have any questions, please call me at 805.498.0909.

senior-with-adult-children

Is a Special Needs Trust needed?

Occasionally I get questions from people about different trusts for their estate. I recently received an email asking about Special Needs Trusts, that I thought would be good to share.

Dear Annette, 

My aunt and uncle have one son who is mentally handicapped, he lives in a group home where he is supervised and works. This is my aunt and uncle’s only heir. They are in their early 70’s my cousin is about 49 now. 

What do they need to do if something happens to either one of them or both of them? 

Do they need to set up a special needs trust? 

 

Your Aunt and Uncle need to set up a special needs trust for the benefit of your cousin.  If they do not, he will likely inherit cash making him ineligible for the governmental benefits he needs.  A person who receives Medi-Cal and is in a program that follows the SSI rules can only have $2,000 of countable assets.  All assets are countable unless specifically excluded, examples of Excluded assets are a home (he or she lives in), household goods and personal effects, an automobile, life insurance with a cash value of less than $1500, a burial plot and a revocable burial fund of $1,500, or les

A special needs trust allows a trustee to purchase extras that do not supplant the beneficiaries governmental benefits.  For instance you cannot use the special needs trust funds to purchase groceries, meals or give them cash, but you can use the funds to pay for extras like clothes, phones, recreational equipment, television and cable, haircuts, glasses, airline tickets, travel, durable medical equipment, medical insurance, medical treatment for which public funds are unavailable, dental care, education and tuition.  This is not a complete list, but I think it will give you the gist of why the  special needs trust is so important for your cousin’s future.

Please have your Aunt and Uncle contact me and I would be happy to assist them in setting up this trust.

Probate Courtroom

What is Probate?

Parents hold a family together.  When parents die, siblings who value money more than anything fight and things can get ugly fast.  Siblings who feel jealous, or slighted because they didn’t get the red bike, hire lawyers to fight with their family.  This costs everybody time, money and destroys any hope of continuing family relationships.

What is Probate?

Probate is the process of transferring property when someone dies without proper planning. Probate Court transfers title to property to those people named in a will, or entitled to take under the law. Probate is costly, time consuming, psychologically challenging and public. Court fees are expensive and probate attorneys receive a percentage of the entire estate.

How can I avoid probate?

With the proper tools, your family can avoid Probate.  In California people with real estate need to have a living trust. Do you or your parents have a living trust?

Learn more about Probate or contact Annette Dawson-Davis, Attorney at Law 805.498.0909