FAQ
Santa Clara County | Estate Planning, Probate & Trust Attorney
Estate Planning
1. What is an estate plan, and why do I need one in California?
An estate plan in California helps you control what happens to your assets, health care, and loved ones if you become incapacitated or pass away. It typically includes a living trust, will, powers of attorney, and health directives. Without one, the probate court may decide who gets what and who takes care of your children.
2. What’s included in a basic California estate plan?
A basic family estate plan usually includes a revocable living trust, pour-over will, durable power of attorney, advance health care directive, and guardianship nominations for minor children. These documents help avoid probate, protect your family, and ensure someone can act on your behalf if you’re incapacitated.
3. Do I need a living trust in California?
Most California residents benefit from a living trust. It helps avoid probate, keeps your affairs private, and allows for faster distribution of assets. Without a trust, your estate may be subject to a lengthy and costly probate process.
4. Can I write my own estate plan?
While DIY options exist, they often create problems due to California’s strict legal requirements. Even minor mistakes can lead to court challenges, probate, or unintended outcomes. Working with a qualified estate planning attorney helps ensure your plan is valid and effective.
5. How often should I update my estate plan?
You should review your estate plan every few years or after major life events—such as marriage, divorce, a new child, a death in the family, or significant financial changes.
6. What happens if I don’t have a will or trust in California?
If you die without a will or trust, California’s intestacy laws determine who receives your assets. This process goes through probate and may not reflect your actual wishes.
7. What is the difference between a will and a trust?
A will goes into effect after death and often requires probate. A trust takes effect as soon as it’s signed and funded, allowing for asset management during your lifetime and avoiding probate upon death.
Probate in California
8. What is probate and when is it required?
Probate is the court-supervised process for distributing a deceased person’s estate. It is typically required if the person died without a trust and had assets over a certain threshold, even if a will exists.
9. How long does probate take in Santa Clara County?
Probate cases generally take several months to over a year, depending on the complexity of the estate, court scheduling, and whether any disputes arise.
10. Can probate be avoided in California?
Yes. A properly funded living trust, beneficiary designations, and other estate planning tools can help your loved ones avoid probate entirely.
Trust Administration
11. What does a successor trustee need to do after someone dies?
The trustee is responsible for managing the trust, notifying beneficiaries, collecting and valuing assets, paying debts and taxes, and distributing assets according to the trust terms. This process must follow California law and fiduciary standards.
12. Do I need an attorney for trust administration?
Yes. Trustees have legal responsibilities and can be held personally liable for mistakes. An experienced trust administration attorney can help you navigate the legal requirements and avoid costly errors.
13. What are a trustee’s legal duties in California?
A trustee must act in the best interests of the beneficiaries, manage assets prudently, provide timely notices, keep accurate records, and follow the trust’s terms. Breaching these duties can result in legal consequences.
Trust & Estate Litigation
14. Can a trust or will be challenged in California?
Yes. Trusts and wills can be challenged if there’s evidence of undue influence, lack of capacity, fraud, or improper execution. These disputes are typically handled in probate court.
15. What is financial elder abuse in the context of estates?
Financial elder abuse involves manipulating or taking advantage of an elderly person to change estate plans or transfer assets unfairly. These cases often involve contested trusts, wills, or gifts made under pressure.
16. Can I remove a trustee or executor?
Yes. A trustee or executor can be removed by the court for breaching fiduciary duties, mismanaging assets, failing to communicate, or acting unfairly toward beneficiaries.
17. What is a breach of fiduciary duty?
A breach of fiduciary duty occurs when a trustee or executor acts against the interests of the beneficiaries—such as hiding information, misusing assets, or ignoring the terms of the trust or will. Legal action can be taken to hold them accountable.