Estate Planning creates a framework for the management and disposition of your assets so that your wishes are carried out by the people you select, both during your lifetime and after your death. The most commonly used tools are trusts, wills, powers of attorney and health care directives.
Planning is particularly important so that your financial and personal life will be well managed and protected when you are not capable of helping yourself, and following your death when you are not around to supervise the orderly settlement and distribution of your estate. You want to achieve these goals in a way that is responsible, effective and without unnecessary cost.
Over my years of practice, I have observed that client circumstances and goals are quite individualistic, and that the art of planning is to adapt the available tools to the client’s unique situation and goals. The result is a plan that fits and is enduring.
Lifetime and Post-Mortem Tasks: Estate Administration is the lawyer’s term for the management of your assets and finances, typically in the context of a trust, power of attorney, or probate.
In addition to planning, I provide advice and direct services for estate and trust management, both before and after death. This may involve the use of conservatorships where incapacity planning has not been adequate (or where the client does not have a living trust), the use of probate processes, both formal probate and less formal out-of-court procedures. I also do fiduciary accountings for trusts and estates, as well as personal and fiduciary income tax advice and returns (See the subpage in this category titled Tax Matters.)
Estate administration typically occurs during your lifetime in the context of your living trust or a court process such as a probate conservatorship. It also refers to the settlement of your estate after your death: payment of your lawful bills and claims against your estate, filing final income tax returns, selling estate property, etc. culminating in distribution of what remains according to the directions in your trust or will, or otherwise according to the state laws governing intestacy.
There are as many details and variations on estate administration as there are individuals and the types of assets they own. Therefore, each administration is a puzzle specific to you that someone else needs to understand and carry out according to your wishes and applicable laws and procedures.
Probate is a judicial process for administering your estate, settling all of your final obligations, and distributing your assets all under court supervision according to your last Will or, if you had no Will, then according to state law. Traditionally a separate probate court handles all matters involving procedures under the Probate Code. Your County may have one or more departments of your Superior Court with a dedicated probate calendar.
In most situations, this probate court has primary jurisdiction over wills, trusts, conservatorships, guardianships, and powers of attorney.
We often use the term Probate as a verb, meaning the process of administering an estate, either under the decedent’s last Will or as an intestate situation when there is no will. The probate process involves (1) collecting and identifying the deceased person's property, (2) paying any debts and taxes, and (3) identifying the proper heirs and distributing the estate property to them. This is what many choose to avoid by using living trusts. It is unnecessarily expensive in many cases, and not the least bit private.
Conservatorships are surrogate arrangements created by the probate court where there is a legal determination that someone lacks lack sufficient capacity to manage their finances and/or personal care, or has become so vulnerable to the influence of others that you cannot protect yourself or your assets. These are so-called "protective proceedings" in contrast with general civil matters. The Court's focus is upon protecting the vulnerable adult or minor.
A Conservator is appointed by the probate court to take control of your (the Conservatee) personal care and/or finances. The Conservator is accountable to and under the control of the probate court. This is an expensive process to initiate and over time because the conservator is required to check in with the court on a frequent schedule.
Advance planning can minimize or eliminate the need for a Conservator. The use of a trust or power of attorney, for example, can dispense with the need to have a financial conservator, thereby saving the cost of frequent accountings that are presented to the court for approval.
Keep in mind that the financial and accounting details of your life are part of the court record that may be accessed by strangers. The trust in particular can keep this information private. Your personal care is a matter of assistance with your daily living and your medical care. Much, if not all, of these things can be handled under medical (Advance Health Care Directives) and special powers of attorney.
The probate court also is the venue where most elder abuse cases are conducted, although not exclusively. The probate court is necessary in some circumstances, such as surrogate (conservatorship/guardianship) proceedings. Also, it is helpful when there are claims or disputes affecting estates and trusts that the parties cannot resolve themselves.
Elder Law is a very diverse area of law because our seniors are impacted by a wide variety of legal issues that may require some kind of legal planning or intervention.
Estate planning and administration, probate, conservatorship and related proceedings constitute only one area of this discipline.
Seniors often receive benefits and services from the federal or state government that are critical to their well being and survival. Legal counsel or assistance may be required with items such as Social Security retirement benefits, supplemental income or disability benefits, Medicare and other health benefits, such as state run Medicaid programs (called “Medi-Cal” in our state) , and benefits for veterans and retired railroad workers.
Finally, a very important area of elder law not to be overlooked concerns how our seniors are treated by those whom they trust or in whom they have placed some reliance. This includes the harm caused by those who prey on our elder population and the misdeeds of those whose entrustment with Mom’s or Dad’s finances and/or care has been abused. There are specific California statutes intended to provide remedies for elder abuse, including injunctive relief, removal of fiduciaries, general and punitive (multiple) damages, payment of attorney fees, etc. Some of these statutes define certain types of elder abuse as crimes which the local District Attorney’s office may prosecute. For example, taking money from Mom is a breach of your fiduciary duty as her trustee or agent under power of attorney. You ought to and must restore what you took and step away from your fiduciary role in taking care of Mom. What you have done also may be the crime of theft for which you may be prosecuted and sent to prison.
Our elder laws are catching up with the needs of our senior population for protection, even from their close family members who abuse their trust, and remediation of the damage caused by elder abuse.