Here at the Marquart Law Group it is our goal to provide you with all of the necessary tools and information you need to secure a future which provides for you and your loved ones in the event of your death or incapacitation. Our attorneys are well experienced in the field of Estate Planning and are here to help you navigate this often confusing and overwhelming subject.
Estate Planning, simply put, is the collection of steps you need to take to make sure that your loved ones are provided for in the best possible way, including lifetime planning as well as disposition of property at death. Estate planning is carried out with legal documents such as wills and trusts; it typically involves an attorney, and may be very complicated if you have a lot of assets. However, every estate plan should start at the same point: decide who needs your support and how you want to protect them. As difficult as it is to sit down and plan for the day when you will no longer be here, it is essential and a real show of love for your family and friends. If you do not make certain decisions such as who will take care of your minor children or how and who will settle your financial affairs, the court will make these decisions for you. Our firm can assist you in creating an effective estate plan so that you control the decisions that other people will make for you in these very important areas.
Some common Estate Planning tools include:
The first tool you will need in your estate plan is a Will. A will is a formal legal document stating how you want your estate distributed. It is submitted to the court after you pass away. A basic will contains the following information: The person’s name, city, and state in which they live, appointment of the Personal Representative (executor), appointment of the guardian for minor children, statement of specific transfers (bequests), statement of who gets the balance of the estate, instructions for the executor to follow and powers granted, description of controls you want over bequests to minors, a place for the testator to sign and date the will, a declaration that two witnesses sign stating that they witnessed the signing and that the testator was of sound mind. A notary public signs this section as well. There is also a Pour-Over Will which works in conjunction with a Living Trust and acts as safety net in the event you forget to put an asset into your Living Trust.
It is important to know that when a person passes away in California his/her assets go through a process called Probate. This is a court supervised process by which you assets are transferred to the beneficiaries listed in your Will. This process is can be long and costly and is a matter of public record. Oftentimes it is beneficial to have a Revocable Living Trust to avoid court involvement and to keep costs and time at a minimum. Your assets that are placed in the Trust are transferred according to your exact wishes to your designated beneficiaries upon your death. With a Trust, unlike in Probate, your assets will be managed and distributed by a Trustee designated by you, with little or no court intervention. In addition, a Trust may help your beneficiaries avoid certain inheritance taxes and protect the trust assets from lawsuits.
Advance Healthcare Directive
An Advance Healthcare Directive, also called a Living Will or Healthcare Power of Attorney, allows you to have control over decisions about your own health care when you are physically or mentally unable to make them yourself. The Advance Healthcare directive is now the legally recognized format for a living will in California. An Advance Healthcare Directive has two main objectives. First, it names your agent who will be responsible for making your healthcare decisions in the event you become incapacitated. Second, it states your wishes in certain situations should you become incapacitated, including end of life decisions, independent living decisions, pain management, religious or spiritual requests, and any other wish you want to document so it is clear for your loved ones in the future.
Durable Power of Attorney
A durable power of attorney gives someone you trust the ability to manage your assets should you become unable to do so yourself. The durable power of attorney gives the person you designate the ability to stand in your shoes and administer your affairs if you become physically or mentally unable to do so. A durable power of attorney is different from an advance healthcare directive which gives another person the ability to make healthcare decisions on your behalf. Even if the person you designate is the same, you should have both documents prepared. The power of attorney is for your assets and the advance healthcare directive is for your medical care.
Consulting with an experienced Estate Planning Attorney can prevent you from making common mistakes in planning, such as neglecting to plan for estate taxes or Medi-Cal. Let the Marquart Law Group help you create the right strategy and safeguards to make sure that you and your loved ones are taken care of. Give us a call today to discuss your options and determine a plan that is right for you!
An estate plan functions to put your wishes in writing and to appoint fiduciaries. In the context of wills and trusts, fiduciaries are the parties responsible to carry out the provisions of the testamentary documents. Fiduciaries include the personal representative (a.k.a. executor), and the trustee. In spite of a person’s best efforts to clarify their wishes, disputes will arise. When our clients are involved in disputes, our first objective is to consider reasonable options to resolve them. However, it sometimes becomes necessary to petition the court to determine the final wishes of the deceased, to obtain guidance for the fiduciary, or to enforce the provisions of the testamentary documents. The attorneys at The Marquart Law Group are well experienced in the field of Estate Litigation and aggressively represent clients in Will Contests, Fiduciary Responsibilities, and Beneficiaries’ Rights.
Normally, an heir or loved one would never think of contesting a Will. However, in some circumstances, a Will Contest is necessary. Generally, it is very difficult to convince a court to throw out a Will or invalidate a gift. However, where a testator was unduly influenced or lacked the legal capacity to execute a testamentary instrument, a Will contest may be necessary to ensure that the testator’s true wishes are carried.
As a trustee or personal representative, you may have personal liability if you fail to discharge your responsibilities timely and properly. Your duties are not always clear from the provisions contained in the testamentary documents, and in some cases, it simply isn’t possible to execute the provisions. The Marquart Law Group will advise you in these matters, and if necessary, petition the court to clarify your duties.
If you are fortunate enough to be named a beneficiary under a person’s estate plan, it is important to consult independent counsel. The Marquart Law Group will ensure that your rights are protected. Our objectives will include: holding the fiduciaries accountable, preventing waste of estate assets, and encouraging the fiduciary to make timely distributions. If necessary, we will go to court to enforce your rights.
Give us a call today to discuss your rights and responsibilities and determine whether court intervention is necessary to protect your interests!
The Marquart Law Group can assist you with developing a strategic Asset Protection Plan that will be both affordable and effective. Setting up an asset protection plan is a complex and challenging task in today’s environment. The plan not only needs to be properly designed, but also needs to be properly implemented. Common asset protection plans include the formation of a Limited Partnership, a Limited Liability Company, a Corporation and/or a Trust.
Family Limited Partnership
The Family Limited Partnership is a popular asset protection vehicle. It turns attractive assets into unattractive assets. The asset becomes unattractive to a creditor because by placing the asset into the limited partnership, the judgment creditor’s remedy changes. The judgment creditor cannot execute directly upon the asset and force its sale. Instead, the remedy is limited to the rights of an assignee of the partnership interest, or only what the general partner decides to distribute, which is often nothing. However, this protection is being abused and is not holding up in many cases where the general partner set up a partnership specifically to avoid a preexisting obligation. For the family limited partnership to be an effective tool for asset protection, it must be set up for valid estate planning (to save estate taxes) or business reasons a substantial time before the obligation arose.
Asset Protection Trust
An asset protection trust is another common asset protection vehicle. An asset protection trust is simply any trust which is utilized to insulate assets from creditor attack. These trusts are normally structured so that they are irrevocable for a term of years and so that the Trustor is not a current beneficiary resulting in the judgment creditor being unable to execute against the asset.
Regardless of the vehicles used, all asset protection techniques have one thing in common: they each make it more difficult for a creditor to either find or take assets. By implementing a properly crafted asset protection plan, an individual can legitimately put a significant portion of assets out of the reach of judgment creditors.
Whether it is a Limited Partnership, Limited Liability Company, Corporation, Trust or some other asset protection vehicle, our attorneys can assist you in structuring an effective and affordable plan. Give us a call today to discuss your options and determine a plan that is right for you!