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Following a divorce there are a number of collateral issues you need to deal with. Among other matters, you may need to reconsider your estate planning situation. For example, if you and your former spouse created a living trust, you will probably want to revoke that trust and create a new separate trust.

Ex-Wife May Seek Removal of Ex-Husband From Children’s Trust

Of course, unwinding an estate plan is not always so simple, as a recent case from Los Angeles illustrates. This case involves a divorced couple who created an irrevocable trust during their marriage. While most estate planning trusts are revocable, irrevocable trusts are frequently used for legal and tax planning reasons.

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As any estate planning lawyer can tell you, a living trust can help you avoid probate, as assets in a trust do not pass under your will, which can save your heirs time and money. However, an improperly executed trust can lead to unnecessary confusion and even litigation.

Courts Sort Out Conflicting Trusts

Trusts do not fund themselves. Once you create a trust you must legally transfer title of your assets to the trustee (which is usually yourself). If you later decide to revoke the trust, you must similarly transfer title from the trustee back to yourself as an individual.

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Sibling rivalry is a natural part of childhood and growing up. When sibling rivalry continues into adulthood, it can have negative consequences for a parent’s estate planning. In some cases an adult child may even attempt to manipulate a parent’s will or trust to place his or herself at an advantage over a sibling.

Toxic Sibling Rivalry Leads to Court-Appointed Conservator

Such behavior may constitute elder abuse and require a court to step in. For example, an appeals court in Los Angeles recently upheld a probate judge’s decision to appoint a neutral third-party conservator for a woman in her 80s. The conservatorship was necessary, according to the court, due to her son and daughter’s jockeying for “position to control, manage, and ultimately inherit their mother’s assets.”

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California is a community-property state. This means that assets acquired during the course of a marriage are considered the equal property of both spouses. For estate planning purposes, one spouse may only dispose of his or her 50% share of community property by will or trust; the other 50% remains with the surviving spouse. Of course, one spouse may always leave his or her share of community property to the other.

Drafting Mistake Leads to Dispute Over Status of Marital Home

It is important when making your estate plan to clearly delineate between community and separate property. This is not always a simple matter, especially if one or both spouses have remarried and retain separate property from prior relationships. While California law allows couples to freely decide whether to convert property’s status from separate to community and vice-versa, a process known as “transmutation,”it is important that a will or trust is consistent on this point.

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Joint tenancy is a common estate planning tool used to avoid probate. The basic idea is that two (or more) people hold property as “joint tenants.” This means they own the entire property together, and when one co-owner dies the survivor automatically owns 100% of the property outright without having to go through the deceased co-owner’s estate.

Court Rules DMV Title Insufficient to Create Joint Tenancy

Although joint tenancy is most often associated with real property, it can be applied to personal property as well, such as motor vehicles. For instance, spouses may choose to register their car as joint tenants. It is important to register a joint tenancy because a probate court will not assume that was your intention. By default, the law assumes two or more people hold property as “tenants in common,” meaning they each own a separate interest.

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Parents often create a trust as part of their estate planning to ensure their children have ongoing access to financial resources. When you create a trust, the trustee has certain legal and fiduciary obligations to the beneficiary. But how far does that duty actually extend?

“Opportunities Lost” Not Grounds for Breach of Duty Lawsuit

A California appeals court recently looked at this issue. The question was whether or not an adult child could sue the former trustees of a trust created by her father because of “opportunities lost” due to the trustees’ alleged neglect. Specifically, the child said she lost her house because she was never informed that she had access to the financial assets in the trust.

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Carrie Fisher, the writer and actress remembered by millions of fans as Princess Leia in the “Star Wars” films, passed away in late 2016. A number of stories published after Fisher’s death mentioned her French bulldog, Gary, a service animal who helped her cope with bipolar disorder. To the relief of many fans, Fisher’s daughter took custody of Gary.

Creating a Pet Trust

Unfortunately, many pets are simply abandoned or forgotten after their owners die. Some people just assume a family member will assume responsibility for a pet, but that is often not the case. This is why it is important to include your pet in your estate planning.

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Dealing with real estate is often the most complicated part of estate planning, particularly if you want to provide for multiple family members. Unlike cash or stocks, it can be logistically difficult to divide a house or a rental property among multiple children. In many cases it makes sense to direct the executor of your estate (or the trustee of your trust) to sell the property upon your death and divide the cash proceeds among your designated beneficiaries.

Leaving it Up to Your Trustee

Then again, there are cases in which you might want to afford one member of your family the chance to keep the property. For example, your will might give one person the right to purchase your house upon your death. Such provisions must be carefully drafted by a qualified attorney to avoid any misunderstanding or confusion.

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Charitable giving is a common feature of many estate plans. In many cases this takes the form of a simple gift in a person’s last will and testament, but charitable giving can also involve complex trust arrangements designed to benefit both the charity and the donor or their family.

Trustee, Charities Spar Over Terms of 1967 Trust

Of course, the more complicated the gift, the more chances there are for a dispute to arise. For example, upon the death of a California man in 1967, his will established a trust for the benefit of his grandson. A corporate trustee was named to oversee the trust with instructions to pay the grandson $100 per month for the rest of his life. The trustee was also permitted to make additional payments to the grandson if he was “without sufficient funds to defray expenses incurred by illness, accident, or other dire need.” After the grandson’s death, the trustee is supposed to divide the remaining trust assets between a number of specified charities.

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The legal requirements for making a valid will in California are straightforward. A will should be in writing and signed by the testator (the person making the will) in the presence of at least two witnesses. Ideally the will is typewritten and signed on the last page. Many estate planning lawyers will also have their clients and the witnesses initial each page of the will, just to make sure there is no doubt as to the authenticity of the entire document.

Alaska Follows California’s Lead on Signature of Handwritten Wills

Most modern wills are typewritten, usually by the office of an experienced estate planning attorney who specializes in preparing such documents. Still, some people decide to write their own wills. Such documents often do not conform with the witnessing requirements of California law. Does that mean these wills are invalid?

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