Last week, I blogged that a common refrain that we hear from people when we encourage them to consider estate planning is “But I don’t need an estate plan.”  This post addresses the second of three of the most common refrains that we hear.

I don’t need an estate plan because I want everything to go to my spouse.

Many married (or registered domestic partner) couples believe that they don’t need an estate plan because each spouse or partner wants everything to go to the other.  This is true for community property.  However, if either spouse owns any separate property, the separate property will be divided between the surviving spouse and other relatives.  Separate property generally includes anything owned prior to marriage and anything acquired during marriage by gift or inheritance, and titling a separate property asset jointly or commingling it with community property will not convert it to community property.  Many married couples will have at least some separate property, and if the surviving spouse and his or her in-laws do not get along, it could lead to disputes.  Additionally, if you have children, half to two-thirds of the separate property will go to your children, depending on the number of children.  If the children are minors, a court proceeding may be needed to distribute the assets to a guardian of the estate for the child or into a blocked account until the child turns 18 (even if the child has a surviving parent).   Even if a large sum of money is involved, there is no way to prevent the child from accessing the entire account at age 18.

Continue Reading You Need an Estate Plan (Even in Your 20s and 30s) (Part Two)

KellyDIn Conservatorship of Gregory D., (“Gregory D.”), the Court of Appeal considered whether the mother of a conservatee had standing to appeal an order that, among other things, set a visitation schedule for her son, an adult conservatee.  The Court of Appeal determined that the mother did not have standing to appeal, as she had not identified any of her own rights or interests that were injuriously affected by the order.

The Conservatorship:

Gregory D. (“Gregory”) is a developmentally disabled adult in his mid-twenties. Gregory reached the age of 18 in 2005; and, he moved into his own apartment in 2008, with supportive services that enable him to live independently.  In 2004, Gregory’s parents, Linda and Joseph, who were divorced, filed competing petitions to be named as Gregory’s limited conservator.  In 2005, Linda and Joseph settled the dispute and agreed that Linda would become Gregory’s limited conservator.  As limited conservator, Linda was granted various powers, including the ability to fix Gregory’s place of residence, access to Gregory’s confidential records and papers, and the power to enter into contracts on Gregory’s behalf.

A Series of Conservators:

While Linda was serving as limited conservator, further litigation ensued between Joseph and Linda pertaining to Linda’s administration of the conservatorship.  Joseph filed a petition to remove Linda as Gregory’s conservator, contending that Linda had improperly relocated Gregory from half-time residence in Joseph’s home and had prohibited contact between Joseph’s family and Gregory.  In August 2008, the court appointed a Probate Volunteer Panel attorney, Paul Gaulke (“Gaulke”), as attorney for Gregory.

In July of 2009, after Joseph and Linda entered into another settlement agreement, the court entered an order providing, among other things, that Linda would resign as limited conservator immediately upon the appointment of a successor limited conservator.  In September 2009, the court appointed Linda Cotterman (“Cotterman”) as the successor limited conservator for Gregory.

Continue Reading Mother Lacked Standing to Appeal Probate Court’s Order Relating to Her Son’s Rights

A common refrain that we hear from people when we encourage them to consider estate planning, especially people in their twenties and thirties, is “But I don’t need an estate plan.”  The reasons vary, and this post will address the first of three of the most common ones.

Reason # One:  I Don’t Need an Estate Plan Because I Don’t Have Very Much.

For young people just starting out, this is a common belief.  But, estate planning isn’t just a way to distribute your property after your death – it’s also planning for your incapacity and making arrangements for your minor children.  A “foundational” estate plan generally consists of three or four documents:  (1)   a durable power of attorney for finances (DPAF), (2) a durable power of attorney for health care/advance health care directive (DPAHC), (3) a will, and occasionally, (4) a trust.  Of those four, the first two of those documents are exclusively for use during your lifetime.  The DPAF names someone to handle your financial and personal affairs if you are ever unable to do so, and the DPAHC names someone to make medical decisions for you and sets forth your wishes for medical treatment.  Additionally, if you have a trust, the trust names a person to manage the assets in the trust both during your life (if you are ever unable to do so) and upon your death.

Continue Reading You Need an Estate Plan (Even in Your 20s and 30s) (Part One)