REVOCABLE LIVING TRUSTS IN CALIFORNIA

Revocable Living Trusts are used by individuals and couples in California to avoid having their estates subject to probate. In California, if your estate’s market value is over $150,000, it will most likely be subject to probate.  A Revocable Living Trust can help you avoid probate.

• What is a Living Trust?

Revocable Living Trusts allow you to retain full control over trust property while you are still alive. After your death, the property in the trust is transferred quickly to your beneficiaries without the complications of probate. Revocable Living Trusts are very flexible estate planning devices because they allow you to transfer some or all of your property by trust. Also, Revocable Living Trusts are not made public upon your death, unlike a will that becomes part of the public record after going through probate. A living trust is called “living” because you make it while you are alive. A revocable trust is one that you can revoke (cancel) or change at any time, for any reason, before you die. Because you may change it at any time, you effectively own all the property you have transferred to your Revocable Living Trust and can do what you want with that property, including sell it, spend it or give it away.

You create a living trust by transferring assets to be held for your benefit or the benefit of your loved ones during your lifetime. A trust can either be revocable or irrevocable, depending on your needs. The living trust can be created with a legal document that includes instructions setting forth to whom you want to leave your assets, in addition to who will manage your assets and how they will be managed if you become unable to manage them. A living trust allows you to maintain control of your assets while making sure the assets are managed according to your wishes upon your death or incapacity.

When you establish a living trust, the next step will involve transferring assets into the trust, such as real property and personal property. After the transfer, these assets still remain in your control. Furthermore, transferring assets to your living trust will not trigger federal gift, estate, or income tax consequences because, although the assets are held in the name of you as the trustee of your living trust, you are still considered the owner for tax purposes.

• What is the Purpose of a Living Trust?

The revocable living trust is typically used instead of a will. The primary reason to have a trust is to avoid or minimize court costs and legal fees associated with probate and estate administration. Probate fees can range anywhere from 3%-7% of your total estate. The assets placed in the living trust are not subject to probate or estate administration.

• What Happens When I Die? 

When you die your co-trustee or successor trustee will carry out the instructions set forth in your trust and distribute your assets to your named beneficiaries. The beneficiaries of the living trust can be people or organizations, such as family members, friends, or charitable organizations. But remember, the assets held in your living trust will be subject to federal and state taxation. However, your attorney can add provisions in your living trust to help reduce and possibly or even eliminate taxes, depending on the size of your estate. If your primary concern is to avoid burdensome federal estate taxes, you should consult with an experienced estate planning attorney to consider alternative options.

• Conclusion

A revocable living trust can be a valuable estate planning tool to help you maintain control over your assets during your lifetime and at death. A living trust may be used as a will substitute, allowing flexibility for lifetime changes such as marriage, partnership, divorce and children. A living trust can also help you reduce or eliminate probate and administrative expenses when your estate is settled. By creating a living trust, with the assistance of an experienced estate planning attorney, you can lower estate costs and fees and avoid unnecessary taxation at the federal and state levels.

ELDER ABUSE - WHAT YOU NEED TO KNOW

A great majority of people give their aging parents and grandparents the love and care they need and deserve. Unfortunately, that's not always the case. In fact, millions of our senior citizens suffer from abuse or neglect each year.

Senior citizens are not unprotected. The law is there to keep our seniors safe and healthy and to punish abusive or neglectful caregivers.

Who are "Elders?"

While all 50 states have laws addressing the problem of elder abuse and neglect, the laws aren't uniform. Under the Federal Older Americans Act (OAA), anyone at least 60 years old is an elder or senior citizen. Many states use the same age as the federal law, but some states use the age of 65.

What is "Abuse?"

Each state law specifically defines elder abuse. Typically, state law definitions include physical abuse, neglect or a deprivation of care that causes an elder physical harm, pain or mental suffering. Neglect may be:

·         Passive, such as where a caregiver's illness, disability, stress, ignorance, lack of maturity or lack of financial resources causes the caregiver's neglect;

·         Active, such as when a caregiver intentionally harms the elder or withholds care from an elder, or when there is hostility and tension between the elder and the caregiver;

·         Also, many states include any form of non-consensual sexual touching as abuse. Some states even include self-neglect, such as when elders can't or refuse to take proper care of themselves. State agencies usually step-in and provide care in these situations.

Abuse May Be a Criminal or Civil Offense

There's a growing trend to treat elder abuse as a criminal offense with enhanced penalties and sentences. Elder abuse statutes provide a range of criminal punishments, such as fines, jail or both. Sentences for crimes like assault and battery, sexual abuse, theft and fraud are usually tougher when elders are the victims.

Some states let elder-victims or their families to sue abusive or neglectful caregivers and recover compensatory and punitive damages, court costs and attorney's fees. This is on top of any criminal charges the caregivers may face.

Penalties for Care Facilities

Usually, there's a separate penalty scheme for facilities and workers who abuse the elderly in institutional settings. In some states, nursing homes and other institutional caregivers and their works are subject to penalties including loss of license, censure and fines. Again, abusive or neglectful staff members and workers may face criminal charges, too.

Reporting Requirements

Most states require elder abuse to be reported to an agency. Several states require anyone who witnesses it to file a report. Most states, however, require reporting by health and human services professionals, long-term care facilities employees and law enforcement personnel.

In a handful of states, financial professionals, such as bankers, and clergy members are required to report abuse as well.

As a general rule, anyone with the responsibility of reporting elder abuse must make a report if they have a "reasonable belief" that an elderly person has been the victim of abuse.

Penalties for Not Reporting

Most states make the failure to report elder abuse a misdemeanor punishable by a fine, jail time or both. In a few states, anyone who is required to report and fails to do so may be sued by the elder or the elder's family members.

In practically all states, the name of the person who makes a report or files a complaint is kept confidential.

Investigation Procedures

State agencies, such as local adult protective services agencies, are usually in charge of investigating complaints of elder abuse. Local police departments may also start an investigation after receiving a compliant and then turn the matter over to the agency.

Also, each state has an ombudsman to investigate complaints of elder abuse in institutional settings, but ombudsmen may investigate some cases of domestic abuse involving elders - abuse that takes place in a private home.

We have these laws and civil and criminal penalties because elder abuse cannot and should not be tolerated. Like our children, many of our senior citizens are incapable of defending themselves against abuse and neglect. It's up to us to properly care for and protect them.

If you suspect someone you know or love is the victim of elder abuse, contact the proper authorities.  If you believe someone in California is or was a victim of elder abuse and you want to take civil action against that person or facility, contact our offices at 760-702-4046 for more information.

PERSONAL INJURY IN CALIFORNIA – WHAT YOU NEED TO KNOW

What Should I Do Right After My Accident or Injury?

Have you been injured as a result of someone else’s carelessness or negligence?  If so, here are some very important steps to take when you've been injured to help make sure your claim is settled fairly and quickly:

·         Seek medical treatment as soon as possible for your injuries; even if you are taken to the emergency room from the scene of the accident, see your primary care physician right away to be referred for tests, obtain required prescriptions for pain and any referrals for additional treatment, including physical therapy or chiropractic treatment;

·         Take photographs at the scene of the car accident or injury scene and any damaged personal belongings; take photographs of any visible injuries such as bruises or cuts;

·         As soon as possible, write down everything you remember about the accident, including when and where the accident occurred, the names, addresses and phone numbers all parties involved and any witnesses; and all insurance information for other parties;

·         Talk to a California personal injury lawyer before making any statements, written or verbal, to insurance company adjusters or representatives;  you may talk to your own insurance company (and you should always report an accident to your own insurance company), but never talk to the other parties’ insurance company representatives until you have talked to a California personal injury attorney;

·         Get a copy of the police report when it is available – this report is very important to your attorney.

How Do I Figure Out Who Is at Fault?

In most cases, you must prove the person who caused the injury was negligent and that he or she did not use reasonable care. In California, you must prove:

·         The person who caused your injury owed you a duty of care;

·         The other person broke or breached that duty of care;

·         The other person's failure caused your injury;

·         You suffered damages (you must have damages!).

Under California's comparative negligence law, if your carelessness or negligence in some way helped cause your injuries, the amount you may recover could be reduced by your degree of fault; but this is not always the case so talk to an attorney first even if you think you may have contributed to your injuries.

Under California's joint and several liability rules, all parties responsible for your injuries are responsible for all of your economic damages. These include medical expenses and lost wages. Each person may be forced to pay all of your damages regardless of their degree of fault.

The law is different for noneconomic damages. These include pain and suffering and emotional distress. These damages are split between those who caused your injuries according to their degree of fault.

What Is My Claim Worth?

Under California law, the person who caused your injury is responsible for:

·         Past, current and future estimated medical expenses

·         Time lost from work, including time spent going to medical appointments or therapy

·         Any property that was damaged, such as your vehicle or personal items in your vehicle

·         The cost of hiring someone to do household chores when you couldn't do them

·         Any permanent disfigurement or disability

·         Your emotional distress, including anxiety, depression and any interference with your family relationships

·         Any other costs that are a direct result of your injury

How Long Do I Have to File a Legal Claim?

In most California personal injury cases, you only have two years to file a lawsuit against the person or persons who caused your injuries. If your attorney has not been able to come to a settlement agreement with the responsible parties’ insurance companies or the parties themselves, you definitely want to file a lawsuit before the two-year statute of limitations runs out.

For more information on your personal injury claim, visit our website at RudolphLegal.com and contact us.

CONSERVATORSHIPS IN CALIFORNIA

When an adult can no longer care for him or herself or manage his or her own finances, a court can appoint another person to take responsibility. This creates a "court ordered conservatorship" (also called a "probate conservatorship") between the protected person (the conservatee) and the responsible person (the conservator).

A conservatorship is a formal, legal authorization for the conservator - usually a spouse or domestic partner, family member, close friend, or hired professional - to make decisions for the benefit of the protected person. It transfers the conservatee’s powers over having control over his or her personal care and/or financial decisions to the conservator. It is particularly useful when the protected person is mentally or physically unable to understand and accept help, or is vulnerable to other persons who are trying to take financial advantage of the conservatee. In that situation, with the appropriate court order, a conservatorship can prevent a vulnerable person from marrying, contracting with, or conveying property to someone else without the approval of the conservator and in some situations, the court.

Types & Benefits of Conservatorship

1. Conservatorship of the Person

A court can order a “conservatorship of the person” for someone whose health is at risk because they can't provide for their own food, shelter, and other basic needs. The benefits of this conservatorship are:

·         It provides a way for you to assist a loved one whose health is at risk but who refuses help.

·        The conservator can obtain medical information and communicate with health care providers to make sure the conservatee receives the best medical care. This is particularly helpful if the conservatee is in a nursing home or assisted living home, or needs continuous monitoring for a serious health condition.

The conservator has the legal authority to make basic personal and health-care decisions for the protected person. The conservator is required to act responsibly and file regular reports with the court.

If your loved one needs help, but due to geographic distance or other factors, you cannot personally assume this responsibility, the court can appoint a professional conservator whose fees (which are usually high) must be paid from the conservatee's assets, unless a friend or relative wants to pay them.

2. Conservatorship of the Estate

A “conservatorship of the estate” is ordered by the court to protect the finances of someone who cannot competently handle his or her own debts and income, or who can't resist financial pressure from others. It is also used to permit Medi-Cal eligibility planning to help preserve the assets of a person who has entered a nursing home and is too ill to understand and consent to a Medi-Cal planning power of attorney.

A conservatorship of the estate can provide a way for you, as a family member or close friend, to help a loved one who is rapidly losing assets or piling up bills because they are unable to manage their money, or because they are being taken advantage of financially. The conservator has legal authority to make sound financial decisions for the protected person and to sign checks and other financial documents. The conservator must act responsibly and file regular reports with the court.

The benefits of a conservatorship of the estate must be weighed against the cost, which can become expensive due to court hearings, filing of regular reports, and other related tasks.

3. Conservatorship of the Person and Estate

A “conservatorship of the person and estate” may be ordered by a court to protect both the health and finances of an adult who cannot care for himself or herself. There can be a separate conservator of the person and a financial conservator, or a single responsible person can be the conservator of both.

4. Limited Conservatorship for Developmentally Disabled Adult

A “limited conservatorship” authorizes the conservator to be responsible for part of a developmentally disabled adult's life and finances, as specified by the court. The disabled person will retain all of their other rights, and the conservator is legally required to get treatment, services, and opportunities to help the disabled person become as independent as possible.

5. LPS Conservatorship for Serious Mental Disorders

An "LPS conservatorship" is ordered by the court under the California Welfare and Institutions Code (instead of under the Probate Code, as are the other examples above). An LPS conservatorship is for a person who is seriously disabled by a mental disorder or chronic alcoholism, and who may need to be placed in a locked facility. These conservatorships have very different rules.

How can an experienced estate planning attorney help you with a Conservatorship:

• Help you evaluate whether a conservatorship or one of the legal alternatives would be best for your situation.

• Prepare and file the legal documents needed to petition the court for a conservatorship.

• Represent you at all court hearings related to the conservatorship.

• Advise and assist you in applying for the legally required conservator's bond.

• Prepare and file the periodic conservator's reports the court requires under conservatorship law.

• Assist you in making legal decisions for the protected person (conservatee), including Medi-Cal planning where needed to protect the conservatee's assets.

• Assist you in evaluating and handling any disputes with other people over the care of the protected person and their assets.

• Refer you to other professionals, such as accountants or home health care agencies, if you need them to successfully manage the conservatorship.

• Advise you on other California conservatorship law relevant to your particular situation.

If you are considering a California conservatorship, please visit our website at www.RudolphLegal.com and contact the Law Offices of Eric A. Rudolph.

WHITNEY HOUSTON’S DEATH – LEARNING ESTATE PLANNING LESSONS

The death of pop star Whitney Houston should serve as a reminder to make sure that when you set up a revocable living trust you properly fund that trust; and that you update your estate planning documents every couple years.

Whitney Houston’s sad story is an unfortunate, but educational example of what should be done with an estate plan.

While it is too early to know all aspects of Whitney Houston's estate when she died, the six-time Grammy winner, who died February 11, 2012 at age 48, had a will that named her only daughter, 18-year-old Bobbi Kristina Brown, as the main beneficiary.

At the very least, hopefully, a revocable living trust was set up and, even better, a series of trusts that are funded by the estate's assets.  This would protect her 18 year old daughter from inheriting everything in a lump sum.  It can be unwise to let an 18 year old inherit a lot of money all at once because they are not old enough to appreciate it and may foolishly spend it.

Along with setting up insurance policies to fund the trusts, Ms. Houston should have updated her will, any revocable living trusts and any insurance policy beneficiary designations after her 2006 divorce from Bobby Brown.

Along with divorce, any major life changing event, such as the birth of a child, a move across state lines or remarriage, should alert you to update your estate plan.

Even without such changes, everyone should review all estate planning documents every three years to account for new real estate or business ventures and to make sure that all trust are properly funded and assets are properly transferred to the trust.

The estate planning that celebrities and high-net-worth people require is often complex and time consuming, which is why it often isn't done or isn’t done right. Celebrities and high-net worth people are used to having things done for them, and they don't want to devote the necessary time to reviewing their estate planning documents and rely on others to do it. Estate planning may also require celebrities and high-net-worth people to make difficult decisions about whom to support — and with how much. Many celebrities start the estate planning process but never actually finalize it because it is too difficult to make the hard decisions required.

A number of music industry stars have died without even completing a will, including Sonny Bono, John Denver, Jimi Hendrix and Bob Marley.

Whitney Houston, the 20th-top-selling artist in the United States of all time, with 55 million records sold, hopefully realized the importance of proper estate planning. Details of the financial state of Whitney Houston — who signed a $100 million record deal in 2001 but also admittedly suffered with drug problems — are being closely held by the family.

Regardless of its current value, Whitney Houston's estate is expected to gain from the giant boost in song sales after her death, the upcoming release of a movie she filmed with Jordan Sparks called “Sparkle,” as well as sales from other assets, including a mansion reportedly on the market for $1.75 million.

There will most likely be a seven-figure increase to her estate or maybe more after her death.  It is important for everyone, including celebrities like Whitney Houston, to remember that properly setting up an estate plan and continuing to update it every few years does not only benefit and protect the settlor of the estate, it also benefits and protects their family and friends who are the beneficiaries of their estate after the settlor is gone.