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Mary is a senior attorney in the firm’s Estate Planning, Tax & Fiduciary Abuse group. She advises individuals and families on all aspects of estate and trust and probate litigation, including revocable and irrevocable trusts, special needs trusts, trust and probate controversies, conservatorships, guardianships, fiduciary counseling, trust and probate administration, elder law and public benefits planning.

An essential aspect of estate planning is the Trustee, who will be tasked to carry out wishes. This is such an important role that potential Trustees are usually asked if they would be willing to take on the responsibility before being named in a Trust. Occasionally, however, Trustees are surprised to find that they have been named. Regardless of how the role comes to you, the Trustor (sometimes called “Settlor,” “Grantor,” or “Trustmaker”) trusted you and believed you to be responsible. Selection as Trustee is an honor, but attorneys know that it can be quite an undertaking.
Continue Reading So, You’re the Trustee of an Estate…Now What?

Last month, my Weintraub colleagues and I had the pleasure of speaking at the Professional Fiduciary Association of California annual conference on the topic of the attorney-client privilege and its application to clients serving in a fiduciary capacity (trustee, executor, conservator, agent, etc.).

Most people have a cursory understanding of what the attorney-client privilege does – it keeps communications between clients and their attorneys confidential and free from discovery, which fosters honest and complete communication between client and lawyer – but many individuals don’t realize that there are important limitations and exceptions to the privilege, particularly for those serving as fiduciaries. These crucial limitations and exceptions apply regardless of whether the fiduciary is a professional fiduciary or simply an individual who is administering a trust or estate or serving as a conservator for a loved one or friend.Continue Reading Focus on Fiduciaries: What Fiduciaries Need to Know About the Attorney-Client Privilege

In my estate planning practice, I often have clients who wish to make gifts or bequests to children or other family members who are receiving public benefits without interfering with those benefits. This may be possible through the use of what is known as a Special Needs Trust. A Special Needs Trust allows funds to be set aside, in trust, for beneficiaries who are on public benefits without causing the beneficiary to lose his or her eligibility for those benefits. The funds held in the Special Needs Trust can then be used to supplement the beneficiary’s public benefits to provide a quality of life for the beneficiary that he or she would not otherwise enjoy.

When to Consider a Special Needs Trust 

Are the Public Benefits Needs-based?  Not all individuals receiving public benefits will lose eligibility for those benefits due to a gift or bequest – it all depends upon what type of public benefits the person is receiving. The key determination is whether the public benefits the individual is receiving are “needs-based.” Needs-based benefits are those public benefits that require that the recipient earn below a certain income and/or have less than a certain amount of assets in order to qualify for the benefits. Needs-based benefit programs include SSI, Medi-Cal (known as Medicaid outside of California), IHSS and others. All of those benefit programs have asset and income ceilings that a recipient must not exceed in order to qualify for the benefit. In contrast, social security and Medicare do not have maximum asset and income levels and therefore they are not considered needs-based programs.Continue Reading Estate Planning for the Special Needs Beneficiary