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San Mateo California Estate Planning Law Blog

Paying a deceased person’s debts

Settling the affairs of someone who passes away is not always easy, especially if that persons died while owing creditors. Depending on the nature of the debt, these creditors may pursue surviving family members for the balance, and if the family is not careful, creditors may convince them to pay debts they do not legally owe.

One of the first things that many people ask when these issues arise is "who pays the deceased person's debts?" The short answer, with only a few exceptions, is the deceased person pays their own debts, or at least their estate does. This usually means that a deceased person's creditors may settle their debts from the assets of the deceased before the rest of the survivors divide the estate.

Claims of undue influence can lead to trust litigation

When a person in California dies, their loved ones will grieve. However, this grief is only amplified if the person's survivors disagree with the contents of the person's trust. Sometimes, these disagreements are small enough that the parties involved can resolve them on their own. But, these disagreements are so big that they lead to trust litigation. This may be especially true if one party believes the deceased was unduly influenced when he or she executed or modified the trust.

For example, as a person ages, they start to lose their physical and mental abilities. When such persons are vulnerable, a loved one might try to influence their estate planning. Though, to constitute undue influence, the person's actions must go beyond mere nagging. The person's behavior needs to be so extreme that it leads their aging loved one to give in and modify their estate plan in a way that either favors that person or disfavors other beneficiaries.

What are some benefits of mediation?

Grieving the loss of a loved one can be an emotional time. Whether the death was sudden, such as in a car crash or whether the death came after a long illness or old age, losing a loved one is never easy. The situation can become even more emotionally charged when a family member wants to challenge the deceased's will or trust. This can drive a wedge between family members during a time when they should be able to lean on one another for support. Therefore, instead of pitting one family member against another in court, some families choose to first pursue alternative dispute resolution processes, such as mediation.

Mediation is an out-of-court method for people in California to resolve their disputes in a mutually satisfactory manner. In mediation, people will not call witnesses or present evidence. Instead, it is simply the two parties and their attorneys working with the aid of a trained mediator to negotiate a settlement.

Divorce, property division and the family home

Home may be where the heart is, but when a couple divorces, the home is not just a place with sentimental value -- it is often one of the couple's most financially valuable marital assets. Some spouses in California may be eager to leave what was a place filled with unhappy memories, while other spouses may be itching to stay established in the home they have been in for years, especially if they have custody of the children. However, there are important things to consider when it comes to the family home and divorce.

If a spouse wants to keep the family home, they will have to consider the expenses associated with home ownership. For example, repairs are inevitable, the mortgage will need to be paid, as will taxes and insurance. Moreover, once the divorce is final, the party keeping the home will be responsible for these costs on a single income. Therefore, before fighting for the family home, it is important to consider whether one can actually afford the home post-divorce.

Why is a prenuptial agreement so valuable?

When a couple in California is planning to marry, they may envision sharing not just their lives, but also their property. Perhaps one party owns the house that they both will live in. Or, perhaps they will open a joint bank account, in which both their paychecks will be deposited. When a couple shares their financial lives, however, discord can occur that might lead to divorce and the subsequent division of assets. Couples can plan for this possibility by executing a prenuptial agreement before marrying.

To understand why a prenuptial agreement is so valuable, it is first important to understand the difference between community property and separate property. California is a community property state when it comes to property division in a divorce.

Understanding asset protection trusts

Building an estate plan is not a simple process, especially in states like California, which carries more regulations and additional taxes than many others. Once a person begins looking into estate planning, they might easily get overwhelmed by the variety and complexity of the financial planning tools available.

This is perfectly reasonable. After all, estate planning professionals study the field for years and regularly review new laws and financial tools to make sure they maintain a clear, functional understanding of changing guidelines. While it is certainly possible for individuals to build their own estate plan without any guidance, the risks to doing so are enormous.

How does trust litigation differ from challenging a will?

Many people in California have established a living trust as a means for distributing their assets to their chosen beneficiaries upon their death. However, even the most carefully thought-out trust can be the subject of trust litigation brought by a beneficiary who believes the trust should rendered invalid. When a beneficiary wants to challenge a trust, they will have to file a lawsuit against all other beneficiaries. This makes challenging a trust more complicated than challenging a will.

For example, to invalidate a will, the person contesting it may argue the decedent was under coercion when the will was signed or that the decedent lacked the mental capacity to create a will. However, since a trust goes into effect while the decedent is still alive, a beneficiary is under the burden of proving that the trust was invalid when it was signed.

Meeting your estate planning needs for you and your loved ones

Estate planning isn't just about making sure your wishes are met. It is also one of the greatest gifts you can give to your loved ones. With a complete, enforceable estate plan in place, your loved ones will know what your medical wishes are, how you want your assets handed down, and who you want to make decisions on your behalf. Thus, an estate plan can help your loved ones cope with your incapacity and death when the time comes.

However, some people in San Mateo may not have executed an estate plan. They may think that because they are not wealthy, they do not have anything of value to pass down. However, even items that have more sentimental value than financial worth could still be hotly contested between one's heirs if there is no estate plan in place to dictate who is to inherit what.

Mediation may be preferable to estate litigation in California

It is always difficult to lose a loved one. However, emotions become especially heightened when the deceased's heirs disagree with regards to the distribution or handling of the deceased's estate. Those in San Mateo who are facing the prospect of estate litigation may want to first consider trying mediation.

Although not right for every situation, through mediation, family members can air their concerns in a constructive manner that can lead to a resolution, rather than resentment. Mediation can also be less costly and time consuming than litigation.

There are options when it comes to visitation in California

Even the best of parents in California may find that, after years of being married, they are best off ending their union. When parents in California divorce, it is only natural that they both want to spend as much time with their child as possible. However, sometimes it is in a child's best interests to live primarily with one parent. When a child spends less than 50 percent of their time with a parent, that parent will have visitation rights. In general, there are three types of visitation that could be ordered.

First there is scheduled visitation. The schedule will list which dates and times the child will be under the care of which parent, including holidays, birthdays and vacations. An advantage of this type of visitation is that it reduces conflict and makes it clear who is to have the child and when.

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The Cohen Law Offices, PC
1720 S. Amphlett Blvd.
Suite 258
San Mateo, CA 94402

Phone: 650-517-6133
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