Law Offices of Roshni T. Desai
Long-term Planning For Orange County

Santa Ana Estate Planning & Probate Blog

What should you know about guardianships?

Californian residents like you who are dealing with establishing guardianship will have a lot on your plate. The Law Offices of Roshni T. Desai are here to help guide you as you determine what you need to know about guardianships and how they factor into your unique situation.

Guardianships are established when one person is unable to take care of themselves, their physical possessions, and their assets. This can include people who have developmental disabilities, people who suffer from dementia, those who receive head injuries in traumatic accidents, or even people who are simply too young to make reasonable decisions on their own. For example, guardianships can be set up for minors who receive over $15,000 in damages.

Too young to know about probate? Not true.

As a young person, you have more immediate concerns than familiarizing yourself with estate planning and probate, right? Wrong. Despite being young, many of your loved ones are not. When their time comes, it's likely that they will have chosen, or the state of California will choose, someone to manage the distribution of their money and property, also known as their estate.

The person selected to distribute the estate is the executor, and despite the executor's background, they must perform certain duties on behalf of the state, or petition to have someone else named.

What should you know about estate taxes?

Californian residents who are handling an estate after the passing of a loved one will have to deal with state taxes as well. These matters can get complicated quickly and making mistakes can be costly, so it's best to have some guidance throughout the process.

FindLaw has a page on dealing with estate taxes in every state. While some taxes are in the middle of getting rid of their estate tax systems, they still currently apply. The amount of taxes you could face when receiving or dealing with property can currently differ depending on your relation to the deceased individual that the property belonged to. For example, if you're a distant cousin, the property you receive could be taxed more compared to a child of the departed. Tax rates can also vary. In some cases, taxes may apply to each individual piece of property that is being passed on. In other cases, the estate on a whole is what's taxed.

What's the difference between an heir and beneficiary?

Californian residents who are dealing with matters of the estate are likely hearing numerous terms they may not be familiar with. For example, what's the difference between an heir and a beneficiary? Some may think the terms are interchangeable, but they aren't.

Both heirs and beneficiaries are people who potentially receive property after a person passes away. FindLaw defines an heir as someone who is entitled to succeed possession of property. Heirs are usually people related to you. They can include your spouse, children, parents, siblings, grandparents, or next-of-kin like distant cousins. Generally speaking, your property will go to them in that order if you don't specify via a will or trust. However, they don't technically have to receive anything.

California probate referees play an important role

In California, probate courts typically require the trustee or executor of the estate to hire a probate referee. If you are filling the role of a trustee or executor, the California Probate Referee System can make your job much easier.

Here are some of the ways the probate referee can help you.

Probate and the 2019 trust decanting law

The Uniform Trust Decanting Act takes effect on January 1, 2019. It is an important advantage for California probate law. The decanting act gives estate planners more flexibility and more options.

In effect, the law allows trustees to pour assets from an old, irrevocable trust into a new trust, mostly without needing permission from courts or beneficiaries to give an advantage to the beneficiary (or beneficiaries) of the original trust.

How do guardianships and conservatorships differ?

In California, holding legal responsibility over another person can seem like a heavy weight to bear. At the Law Offices of Roshni T. Desai, we're here to help you figure out the things you need before you embark on this journey with the person you're overseeing. First, we will look at the differences between guardianships and conservatorships.

A guardianship or conservatorship involves helping to care for someone who is not able to care for themselves. In the case of conservatorships, this can apply to people with disabilities of all sorts, either physical or mental handicaps alike. Regardless of what your loved one is dealing with, they are simply not able to provide for themselves in the way most people might.

Tough probate questions do not wait

The holiday season is a special time of year in California. Families get together, friends celebrate and workers across the state get some much-needed time off. However, as much as you may want to enjoy your holidays and expect them to be happy, not everything happens on a regular schedule.

If you were to have a legal emergency, sometimes it would not be wise to wait until the holidays pass. Here at the Law Offices of Roshni T. Desai, we respect the fact that we hold a position of responsibility for our clients. That is why we try to be there when things get tough.

The basics of a first-party special needs trust

At the Law Offices of Roshni T. Desai, we understand that there are many ways to plan your estate, ranging from writing a last will and testament to setting up a trust. As you and other California residents may know, there are many types of trusts you can consider, which can benefit you and other family members in many ways. One type of trust, the special needs trust, is meant to protect the assets of someone with disabilities and allow him or her to stay eligible for Medicaid and other forms of government assistance.

What if you became permanently disabled in an accident and lost your job? You would need health care coverage, but the property you own could disqualify you from government benefits. You might consider setting up a first-party special needs trust, according to the National Law Review. Before December 2016, only a disabled person’s parent, grandparent, legal guardian or the court could establish a special needs trust. As you might imagine, this would be beneficial for those who are unable to make financial decisions on their own, but it would be demeaning to the disabled who are mentally sound. First-party special needs trusts differ from third-party trusts in that mentally competent people with special needs can set up the terms of their own trust.

Why are the holidays a good time to talk about estate planning?

If a loved one in California broaches the subject of discussing estate planning during a holiday get-together this year, it may seem counterintuitive to you. After all, the holidays are a time for fun and festivities, and a discussion about your final wishes seems like it might be depressing. 

Nevertheless, these discussions need to take place among family members, and the holidays are a good time to take care of it when your family gets together to celebrate. The discussion does not need to dominate the holiday gathering; all you need is an hour or two that you can set aside specifically to gather close family members in a quiet room to have the estate planning discussion.