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California Estate Planning Blog

Handling retirement accounts during probate

Settling a person's final affairs after his or her passing can be a difficult experience. Those individuals close to the decedent may have many questions about what will happen to remaining assets and other factors associated with the estate. Typically, probate will focus on handling these remaining affairs, but not every asset has to go through probate.

Some California residents may be particularly interested in whether retirement accounts have to go through probate. When it comes to these accounts, it can depend on the decedent's planning as to whether probate is required. Typically, retirement accounts are payable or transfer on death accounts, which means that they will pass directly to a named beneficiary rather than being subject to probate. However, if the account holder did not designate a beneficiary, the account will have to go through the legal process before distribution.

Information that can help an executor during probate

Acting as the executor of an estate is not an easy task. Because it's a complicated endeavor, it is often useful for the executor to know about the role and the required duties before the time to probate the estate comes about. In fact, it is can be useful to gain certain information before the testator passes away.

One immensely important bit of information that a California executor needs is the location of the testator's will and other estate planning documents. The executor needs the original will in order to file it with the court to have it validated and for the probate process to begin. If he or she does not know where to find the will after the loved one's passing, the process can be complicated before it even begins.

Attention to detail will help prevent estate planning mistakes

When it comes to estate planning, it's critical to prevent mistakes. Even a minor slip-up can cost your loved ones time and money in the future, all while adding stress during an already difficult time.

While there are hundreds of potential estate planning mistakes, these five are among the most common:

  • No estate plan: It's easy to put off estate planning for the time being. It's easy to think that you'll have enough time to get everything in order in the future. However, if you continue to procrastinate, it could eventually come back to haunt you. If you need an estate plan, there's no better time than now to create one.
  • Forgetting to review your estate plan: Estate planning isn't something you do one time and then forget about. You must regularly review your estate plan for any changes you need to make. For example, if you marry or divorce, you'll want to review your estate plan and make the necessary changes.
  • Ignoring incapacity planning: Don't turn all your attention to what happens to your assets upon your death. Incapacity planning is a big part of estate planning, so creating a living trust and/or appointing a power of attorney is a good idea.
  • Neglecting to name a guardian: If you have children under the age of 18, it's critical to name a guardian. This is a person who agrees to raise your children should you and your spouse pass on.
  • DIY estate planning: With the rise of technology, DIY estate planning has become more common than ever before. People are doing this for many reasons, including the hope of saving time and money. The problem with DIY estate planning is that you could make a simple mistake that causes big trouble. It's best to consult with a legal professional, as they have a thorough understanding of estate planning and federal and state laws.

Applicable parties receive copies of the will as probate begins

For California residents who have never had a close loved one pass, they may think that surviving family members still gather in a room and hear someone reading the deceased's dying wishes. While the reading of the will sometimes still takes place in fictional settings, it is not an action that happens in reality anymore. Instead, copies of the will are typically provided to applicable parties in association with the probate process.

If there is an attorney associated with the estate, that legal professional may provide the copies of the will. Because the executor named in the document will handle the upcoming probate proceedings, he or she typically receives a copy of the document. It is also common for beneficiaries named in the will and any guardians for minor children to obtain a copy as well.

Beneficiaries must be informed about probate proceedings

Many California residents expect some type of inheritance after a close loved one passes away. If these individuals are not acting as the executors of those estates, they may not fully understand when asset distribution will take place. Distributing assets is part of the probate process, but it typically comes as one of the last steps. However, beneficiaries must still be notified of the proceedings.

It is common for remaining estates to go through probate proceedings in order for the final affairs to be settled. In order for probate to begin, the executor of a particular estate needs to file the will with the probate court, and the court must validate the document. After this step, the executor has three months to notify the applicable beneficiaries that the legal process has begun. In many instances, though, it does not take three months for notifications to be made.

Adhering to state laws important when creating wills

Though most people understand that estate planning is important, they may not get started on their plans as early as they should. Many people begin working on their wills when they are nearing retirement, but really, any adult, young or old, could benefit from creating this document. Without one, surviving loved ones could be left at a loss as to how to handle certain affairs.

When creating a will, California residents may first want to give consideration to the person they want to act as executor of the estate. Married individuals may automatically think that their spouses would best suit the role, but that may not necessarily be the case. In fact, acting as executor takes a lot of time and effort, and some people may simply not have the ability to handle all the necessary tasks for closing an estate. Though a spouse may make it to the list of candidates for executor, it is important to review all options before making a final choice.

Tips for talking to your parents about estate planning

You worry that your parents have not made an estate plan. You saw a report saying that a vast number of Americans have not even written a will. It dawned on you that you have never heard your parents mention writing a will, creating a trust, setting up a medical power of attorney or doing anything else to plan for the end of their lives.

It did not take you long to realize that they probably fell into the category of aging Americans without an estate plan. You know what a risk that is and you know they need to get started. But how do you talk to them about it?

Estate administration: Are Franklin's discovered wills valid?

When a person dies without a will or any other estate planning documents, surviving loved ones can have a difficult time handling the remaining affairs. In some cases, documents may later be discovered that could shed light on estate administration issues, but those documents may not always be the answer surviving loved ones were looking for. In fact, more strife could arise.

California readers may be interested in recent reports indicating that three handwritten wills have been discovered in Aretha Franklin's home. Though it was unclear who found them, two of the documents were found in a locked cabinet, and the third was discovered under the cushions of a couch. The legendary singer died in 2018 seemingly without any type of estate plan. Her niece was named as the personal representative for her estate, and once these wills were discovered, she showed them to attorneys for the estate's heirs.

Family relationships can make probate more difficult

The death of a loved one can make emotions run high. If a family already has a tendency toward conflict, it may be even more likely that disputes will occur because they are in such an emotional state. In some cases, probate proceedings can become tense due to difficult family relationships.

Some California families may find themselves at odds over the remaining assets of estates due to sibling rivalry. Unfortunately, some siblings never get along and squabble at every turn. If they feel that a parent's estate plan favors one sibling over another, it is possible for serious conflicts to result. If one of the children has been named as the executor of the estate, he or she may have a difficult time completing the legal proceedings if challenged by other siblings at every turn.

Funding trusts is a crucial step in the estate-planning process

After San Jose residents spend a substantial amount of time thinking about, creating and executing an estate plan, they often hope that is the end of the process so they can stop thinking about it. For many of the documents included in an estate plan, that could be the case. However, when it comes to trusts, the work is not done after one is created.

Trusts need to be "funded" in order for their users to receive the benefits they offer. Otherwise, it is just a document. Therefore, a San Jose resident is not finished with this estate-planning process until this step is completed. What does it mean to fund a trust? It means changing the ownership of an individual's assets into the trust.

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