Mental Capacity to Make Wills and Trusts

 

For someone to create a valid will or trust, the individual must be of “sound mind”, which is a term for determining mental capacity. If an individual is determined to lack sufficient mental capacity, then any document that individual signs is invalid under California law. Under California law, there are different laws for determining mental capacity based on whether an individual is signing a will or a trust. This article will examine the role mental capacity plays in estate planning.

Mental Capacity Required for Wills

California law presumes that everyone has the mental capacity to make a will. As a result, it is up to the individual challenging the legitimacy of a will based on mental capacity to pursue these matters in court. To make a will, an individual must be at least eighteen years old and of sufficient mental capacity. The mental capacity required to make a will in California is considered the lowest. The mental capacity law for wills require an individual to understand several things:

  • The individual must understand that he or she is creating a will.
  • The individual understand what property the individual owns.
  • The individual must understand the relationship the individual has to the beneficiaries that are named in the will.
  • The individual must not suffer from mental disorders with symptoms that include delusions or hallucinations.

Mental Capacity Required for Trusts

The mental capacity required to make a trust is higher than the capacity required to make a will. The mental capacity required to create a trust dictates that an individual understands the following:

  • The rights, duties, and responsibilities created or affected by the decision.
  • The probable consequences for the decision maker in addition to the various individuals who are influenced by the decision.
  • The significant risks, benefits, and reasonable alternatives created by the trust.

Mental Capacity and Estate Planning

Have the loved ones in question examined by medical care providers. Due to the differences in standards, individuals who display any signs of memory loss or dementia should be evaluated by a primary care provider for mental capacity. While a person with the beginning stages of dementia likely has the capacity to create a will, that individual likely does not have the capacity to create a trust. It can be particularly difficult to determine exactly when an individual’s mental capacity is no longer fit to make either a will or trust because individuals are often resistant to admit a decline in mental aptitude. Have estate planning devices in place by the time mental capacity is affected.

If you have any questions about mental capacity might influence an individual’s ability to write a Will or Trust, contact a seasoned and experienced California estate planning lawyer today.

The Purpose of No Contest Clauses

One of the primary goals of estate planning is to reduce the disputes that occur among a deceased individual’s loved ones. While there are many ways to achieve that goal, these methods often include ensuring that all proper requirements are followed when executing documents, including carefully drafting trust terms and keeping estate planning documents unambiguous. When a family member feels that they were unjustly treated as a beneficiary, estate planners utilize a “no contest” clause. This article will examine some essential information about “no contest” clauses in California.

Purpose and Explanation

A “no contest” clause is term in a will or trust that can penalize a beneficiary if he or she files a contest with the probate court. A “no contest” clause provides that a beneficiary loses all inheritance from the estate plan if the beneficiary seeks to invalidate any of the estate plan’s provisions or documents. “A no contest” clause aims to discourage litigation by beneficiaries who are unhappy with litigation and require the beneficiary to choose between accepting the gift provided in the estate plan and losing one’s inheritance.

When No Contest Clauses Apply

While “no contest” clauses are rarely used to disinherit beneficiaries, these clauses still apply in cases where the requirements of the California probate code apply. To meet these requirements, the following standards must be met:

  • Triggering Event: Individuals who undertake a “no contest” action must describe in the complaint an action that is specifically listed in the types of triggering events. Triggering events include direct contests of a document or attempt to directly overturn a will, trust, or creditors’ claims, and challenging the characterization of property as either community or separate.
  • Probable Cause: An individual who files a no-contest clause must file this action with probable cause of success.

Disinherited

Individuals who do not meet established standards can be disinherited from legal actions.

Examples of Bad Trustees

Parties filing “no contest” actions must remember that there is no basis to disinherit a bad trustee simply for breaching a duty to the trust. This lack of basis means that trustee cannot have legal action brought against them simply for engaging in breach of a trust. As a result, the burden is on individuals filing the lawsuit to prove the case at trial.

Recent “No Contest” Clause Law

There are two substantial and recent California laws dealing with “no contest” clauses. In 2002, the California Supreme Court decided a case that upheld the requirement of probable cause in pursuing “no contest” clause cases in California. In 2013, in another case, the California Supreme Court limited the types of cases against which “no contest” clauses are applicable. These laws are largely remembered for shaping the current requirement for a “no contest” clause-based legal action in California.

If you are curious about the role of a “no contest” clause in estate planning, contact a seasoned and experienced California estate planning lawyer today.

Methods of Irrevocable Trust Modification

An irrevocable trust refers to a trust that cannot be modified or terminated without the permission of the beneficiaries. Irrevocable trusts offer the benefit of reducing the grantor’s estate tax liability while simultaneously transferring wealth to a deceased individual’s loved ones. Irrevocable trusts, however, can be modified in several ways, many of which do not require court approval. This article will discuss the ways, by which in accordance with California law, irrevocable trusts can be modified:

  • Consent of all Trust Beneficiaries: In accordance with California code, beneficiaries can petition the appropriate probate court for trust modification provided the trust does not contain specific clauses. One of the most substantial problems with this problem is that beneficiaries often do not live in the same area. Sometimes not all beneficiaries may be born yet.
  • All Trust Beneficiaries and the Settlor Consent: Provided all of these parties consent, no court method is needed for modification through this method.
  • At Least One Trust Beneficiary and the Settlor Consent: Assuming that the interests of the non-consenting beneficiaries are not substantially impaired, this method is allowed. Keep in mind that if the trust does substantially impair the interests of non-consent beneficiaries, then this method is not permitted.
  • Principal is Uneconomically Low: A trust is considered uneconomically low if a trust principal is considered by the court to have a fair market value to defeat or substantially impair the accomplishment of the trust’s purposes or the trust’s principal is less than $40,000. If the trust’s purpose is considered uneconomically low then the trustee is permitted to terminate the trust immediately.
  • Changed Circumstances: Petitioning a court for modification is especially beneficial when a grantor has died and the beneficiaries desire to modify the trust in response to changed circumstances. If the purpose of a trust is substantially changed, then modification of the trust is permitted. A common example of changed circumstances is when a charity is the beneficiary of a trust but the charity no longer exists at the time the trust becomes irrevocable. Filing a petition to request a change of the trust in these cases does not require the consent of the remaining beneficiaries.
  • Conform to Tax Laws: If the primary reason for modifying a trust are tax laws, in accordance with California code, a trust can be modified to achieve intended tax purpose of the trust. A skilled and seasoned attorney will likely be essential to review the trust and determine whether or not the trust conforms to existing tax laws.

Any party who is seeking to modify a trust must carefully examine the proposed methods for trust modification. The parties must understand the various harms and advantages that will result from a trust modification. A trust modification can have gift, estate, generation-skipping tax, and income tax consequences. If you need the advice of a skilled and knowledgeable California trust lawyer, do not hesitate to contact our firm today.

Essential Advice in Dealing With Vicious Dogs

The most recent statistics reveal that in 2014 there were 42 dog bite-related fatalities in the United States. In California, further reports show that the largest number of animal attacks are due to pit bulls. If you happen to find yourself in a situation with a vicious dog, there are certain steps that can be taken to minimizing the potential damages in the event that dog bites do occur.

The following pieces of advice may help you avoid being bitten by a vicious dog. If possible, avoid dogs. If the dog is off leash, act as if the dog views you as a threat even if you are familiar with the dog. If you are approached by a roaming dog, the American Kennel Club recommends that you drape your arms over your chest, stand still, do not make eye contact with the dog, and if possible throw something to distract the dog’s attention. Also, realize that dogs naturally become startled when wakened, so avoid disturbing a sleeping dog and respect the animal’s personal space.

Understand California law. In accordance with California law, anyone who owns a dog is responsible for ensuring that the dog does not bite or cause injury to anyone else. Courts in California do not require plaintiffs to prove that the dog had a previous biting history or that the owner knew about the dog’s propensity to bite. Dog owners, however, do not owe a responsibility to protect trespassers against dog bites. Also, military or police dogs that bite while performing their duties are not subject to liability.

If a dog bite does occur, be sure to take the following steps:

  • Identify the Dog and its Owner. If at all possible, obtain the name and address of the individual who owns the dog. If the dog’s owner cannot be identified, you will likely be forced to go through a series of rabies shots to minimize potential risks.
  • Obtain Medical Care. Contact medical emergency personnel or have someone drive you to a hospital. Medical treatment is necessary if you are attacked or bitten by a dog.
  • File a Dog Bite Report. Once you have receive adequate medical treatment, file a dog bite report with the proper city or county authorities. This document initiates a paper trail for law enforcement.
  • Gather Information. If at all possible, identify the dog’s owner. Obtain the dog’s license information and any recorded information about prior attacks made by the dog.
  • Photograph Your Injuries. Photograph your injuries. Make sure that photographs are made periodically as the wounds continue to improve.
  • Contact an Attorney. Do not hesitate to contact a skilled and experienced attorney who can ensure that your dog bite case is handled in the proper manner and that you receive the compensation that you deserve for your injuries.

If you are bitten, attacked, or otherwise injured by a vicious dog, it is imperative that you follow the above mentioned steps to minimize the potential damages from the accident. It is also important that you do not hesitate to contact a skilled and experienced California personal injury attorney today.

The Advantages of a Totten Trust

Forbes has named the Totten Trust as one of the six types of trusts for the person who has everything. A Totten Trust is a type of trust account that is established at a local bank. Totten Trusts originated as a method of creating trusts for people who possessed no real property and could not afford to draft a will. The Totten Trust, however, still serves a useful function. The individual who establishes the trust is known as the “depositor” because the individual deposits money into the trust account. The recipient of the trust is called the “beneficiary.” The depositor then deposits a sum of money into the account for the beneficiary, which is paid to the beneficiary on the date of the depositor’s death. Prior to the depositor’s death, the depositor may add to or withdraw money to the account at any time. Upon the depositor’s death, the beneficiary can present an original death certificate to the bank to obtain proceeds from the trust. For clients who are planning an estate there are several advantages to Totten Trusts, which include the following:

  • Anonymity: A Totten Trust can be anonymously created without even the beneficiary learning of the account’s existence until the date of the depositor’s death.
  • Beneficiaries Cannot Access the Trust: California code dictates that a Totten Trust only grants the beneficiary an expectancy interest while the depositor is alive and the depositor is able to decide at any point in time to change who the named beneficiary is.
  • Beneficiaries Have an Easier Time Accessing Fund:. After the depositor’s death, all that a beneficiary needs to do is present the bank where the depositor made the Totten Trust with a certified copy of the depositor’s death certificate and a copy of the beneficiary’s government-issued identification.
  • Depositor Maintains Complete Control: The depositor maintains complete control over the Totten Trust until the individual’s death. As a result, the depositor is allowed to use money within the account for living expenses.
  • Easy to Open: Totten Trusts are easy to open in comparison to other types of trusts. All an individual need does is go to a bank, ask for the appropriate forms, fill out the required documents and turn this paperwork into the bank.
  • No Tax Disadvantage: While the contents of a Totten Trust are used to calculate estate tax liability, there are no estate tax disadvantages to the establishment of a Totten Trust.
  • Not Estate Assets: While assets remaining in a Totten Trust are factored into the calculation of estate tax liability, these assets are not considered part of the deceased individual’s estate and pass outside the realm of probatable estate assets. Because Totten Trust amounts pass outside probate law, Totten Trusts are invaluable when the deceased individuals does not leave behind a will.

If you are in the process of estate planning, you likely need the experience of a knowledgeable and informed lawyer to explain all of the options available to you so contact our firm today.

Essential Information About Undue Influence in Estate Planning

Undue influence occurs when a testator is unable to exercise independent action and the person exercising the influence makes that person do something against his or her free will. Kind actions and charm are not enough to classify as undue influence. In determining whether undue influence has occurred, courts look towards the vulnerability of the victim, the influencer’s apparent authority, actions used to influence, and the equity of the result. This article will list some essential information about the role that undue influence plays in estate planning in California.

  • Circumstantial Evidence: Parties can use the existence of circumstantial evidence to demonstrate that undue influence exists in a trust or will contest. A case need not be established through “direct” evidence, but instead “circumstantial” evidence can be used to demonstrate that an event occurred. The California legal system has used circumstantial evidence in numerous cases to demonstrate that undue influence has occurred. While still difficult to establish, undue influence cases are easier to prove than some parties might believe. Consequently, parties who believe that undue influence has occurred should not hesitate to contact skilled and experience estate planning attorneys.
  • Codified: The state of California has codified the definition of undue influence, which means that for the purposes of the law, it is easier to determine exactly when the act of undue influence has occurred. This codified definition does not drastically change the concept of undue influence but instead serves to codify previously established concepts. The four-part test for undue influence under California law helps determine more easily whether undue influence existed.
  • Equity is Not Enough: Based on the factors used to determine undue influence, an unfair result by itself is not enough. As a result, individuals can choose to act unfairly in regards to beneficiaries of an estate and this act alone is not enough to establish that undue influence has occurred. As a result, a party that lost money or other things of value does not alone mean that undue influence occurred.
  • Parties Can Shift the Burden of Proof: The party accused of acting under undue influence can shift the burden of proof to establish that the accused party did not act under undue influence. This burden shifting element means that parties accused of undue influence have a defensive tool that can be used to argue undue influence did not occur in a case.
  • A Weak Mental State is Required: To establish the existence of undue influence, a party must demonstrate that an individual was susceptible to being unduly influenced. This susceptibility is an essential element of any undue influence case that must be demonstrated in order for a party to collect damages.
  • Undue Influence Requires a Compelling Reason. To demonstrate that undue influence existed, a party must demonstrate a compelling reason to overturn a Trust or Will. A judge in deciding a case will require a unique and compelling reason to overturn an estate planning decision due to undue influence.

If you believe that undue influence occurred during estate planning, you likely need the experience of a knowledgeable and informed lawyer to explain all of the options available to you so contact our firm today.

Essential Advice for Selecting an Executor

Individuals traditionally select family members to serve as the executors of their estates. Sometimes, however, family situations become complicated after the death of a loved, like the current situation involving the estate of Muhammad Ali. Individuals hope to be able to count on their family members during a difficult time. Selecting an individual, however, to serve as the executor of one’s estate is a large responsibility. This article will provide some tips in selecting an executor for one’s estate.

  • An Executor Should Be Trustworthy. It is imperative that an executor be trustworthy because he or she will be exposed to a variety of financial secrets. He or she will be responsible for reviewing the assets of the estate, determining the deceased individual’s liabilities, and paying off the deceased individual’s debts.
  • Anticipate Potential Conflicts. Consider whether naming an individual as executor will create any potential conflicts among loved ones.
  • Economical Decisions are Necessary. Individuals must make sure that estates do not lose value prior to successful distribution.
  • Choose Someone Capable of Handling the Responsibility. An executor must have a great capacity for organization, be attentive to detail, meet deadlines, and perform other tasks. An individual should be selected who will be able to best fulfill these responsibilities.
  • Do Not Decide Executors Based on Emotional Connections. Do not let your emotional connection to an individual determine who you choose to act as executor. Not every beloved family member possesses the skills requisite to become an executor.
  • Ensure That Your Executor is Diplomatic. In deciding who to serve as executor, select an individual who would be diplomatic in nature while acting as executor.
  • Executors Must Be Organized. The individual who is named executor will be tasked with a variety of detailed assignments including making lists of assets and ensuring that timely distributions for estate taxes are made.
  • Executors Should Be Sensitive. Executors should be sensitive and compassionate enough to ensure that a deceased individual’s last requests are successfully carried out.
  • Make Sure an Individual Knows You Have Named Him or Her as Executor. If you do decide to name an individual as executor of an estate, make sure this individual is informed of your decision. Make sure that alternatives are lined up as well.
  • Make Sure an Individual Named as Executor Has all the Information. If you do decide to appoint either a family member or another loved one as executor, make sure the individual is given the contact information for a reputable estate planning attorney who can assist in ensuring that the executor’s duties are properly carried out
  • Realize There are Other Options. Individuals should know that if they cannot find someone to satisfy all of these qualities, other choices exist including naming a bank or financial institution as executor. Individuals can also ask an estate planning attorney to partner with the individual who is named as an executor.
  • Sometimes a Professional is the Best Choice. You might be unable to select a third party to serve as executor and instead select an attorney or other professional to act as executor of your estate. In this case, make sure you know what fees must be paid into your estate.

Appointing an executor can prove to be a difficult task. If you are faced with naming an executor or have any questions for an estate planning lawyer, contact a seasoned and experienced California estate planning lawyer today.

Estate Planning for the Never Married

Married couples and parents usually have an easy time determining who will inherit their assets. An increasing number of Americans are faced with the situation of passing away without either spouses or children in place. In an article published last year, the New York Times reported that it is wiser for unmarried individuals to make the difficult choice of deciding to whom their estates will go rather than allowing them to go to distant relatives that they barely know. According to the Pew Research Center, statistics reveal that 20% of adults age 25 and older in 2012 had never married, which is an increase from 9% in 1960. Meanwhile, the number of women age 40 to 44 who have no children has increased from 10 % in 1976 to 15% in 2014. This article will discuss some essential advice for unmarried individuals during estate planning:

  • Explain Your Decisions: To prevent adverse legal actions and to ensure that your exact plans are carried out, it is wise and helpful to provide an explanation of your decisions. This type of overly thorough explanation is particularly helpful in cases where there is an unequal distribution of assets to persons with reasonably similar relationships to the testator of a will.
  • Need: Need is a potential good factor to decide how much to give a beneficiary.
  • Regularly Review Your Estate Plan: Individuals who are not married and do not have children should review estate plans at regular intervals to identify areas in which changes to the estate plan are desired. They might include third parties that they were close to at one time but lose touch with over time. In other situations, the financial circumstances of a beneficiary might change, which could signify a need to rewrite an estate plan so that individuals who are in greater need are awarded greater amounts.
  • Understand the Decisions Often Made By Others in Similar Situations: In similar situations, individuals who pass away at younger ages tend to select longtime companions, nieces and nephews, siblings, parents, and friends as beneficiaries. Older individuals who pass away in similar situations tend to select charities.
  • Use Clear and Concise Terms: Individuals without spouses or children must be definitive and clear about who should receive what parts of their estates. When there is not a clearly specified order, the state usually makes strict decisions regarding genealogical rules of inheritance. These types of decisions also tend to take an extended amount of time.

If you are unmarried, crafting an estate plan can be a difficult exercise, so do not hesitate to contact a knowledgeable and seasoned California estate planning lawyer today.

Your Rights Following a Bicycle Accident in San Diego County

Biking is one of California’s most popular sports and pastimes, due in large part to the state’s beautiful weather, scenic roadways, abundant state parks and bike trails, and active population. Experienced cyclists know how to take precautions to protect themselves on the trail or road, but many cyclists are still involved in accidents due to no fault of their own.

If you have been injured in a biking accident in southern California, your experienced Carlsbad or Palm Desert personal injury attorney can help you determine whether another party should be held liable for the damages you have suffered.

Bike Path and Lane Safety in San Diego County

According to a San Diego county grand jury report on bicycle safety, the bike paths and lanes in the area are substandard, poorly located, badly marked, and poorly maintained. While San Diego County has made strides in becoming more bike-friendly in recent years, there is still room for improvement in many areas affecting bike safety.

The study also found that nearly 14% of all traffic accidents in San Diego County involved a collision with a bicycle that resulted in an incapacitating injury to the cyclist, and the higher the speed limit, the higher the rate of bicycle accidents. Since the year 2000, 49 bicyclists have been hit by vehicles while traveling on Montezuma Road.

Traffic Law Education and Enforcement

Laws are in place to protect bicyclists, but when traffic laws are not enforced, motor vehicle drivers do not learn how to best share the roadways with bicyclists. In California, bicyclists have a right to share the roadway with vehicles and do not necessarily need to be riding in a bike lane.

Pure Comparative Negligence Rule in California

California operates under the rule that victims who are injured due to another party’s negligence may recover damages, even if their own negligent conduct contributed to causing the accident. In other words, even victims who are partially at fault can still be eligible for compensation. While some states cap the fault percentage at 50%, California allows recovery even where a plaintiff might be 99% responsible for the accident.

This is important to understand with respect to bicycle accidents, since many bicyclists are found to be partially at-fault. For instance, a bicyclist might not obey all the traffic laws or might not ride in the designated bicycle lane because it is poorly marked.

Even if you believe you may largely be at fault for your bicycling injuries, your bicycle accident attorney with Leslie Legal Group will likely still be able to pursue compensation on your behalf. Though there are some limits to whether a government entity, as opposed to a private insurer or individual motorist, may be held responsible, your personal injury lawyer can investigate the circumstances and determine how to proceed.

Consult an Experienced Personal Injury Attorney in San Diego County

Personal injury attorney Sean Leslie is an experienced bicyclist who understands what you may be going through following an accident. He can help you seek the compensation you may need to pay medical bills and obtain necessary rehabilitation, services so that you can return to road if you desire.

Bringing a Personal Injury Suit Against a Driver on Prescription Drugs

Have you or a loved one been injured as the result of the negligent or reckless conduct of a person driving while experiencing side effects related to a medical prescription? Did you know that the law holds these drivers accountable just the same as drivers who caused personal injuries or property damage as a result of other types of careless, reckless, or intentionally wrongful driving? Neither the legality of a prescription nor ignorance of its side effects are valid bases for avoiding liability for the damages caused by a breach of the duty of safe driving. So, if you have been injured by driver under the influence of even a legal prescription medication, it is within your right to seek compensation from them for your injuries, medical bills, lost income due to missed work, pain and suffering, and other losses. To hold the at-fault driver responsible for these damages, contact a skilled and experienced California criminal defense attorney.

Driving Under the Influence of Prescription Drugs is Dangerous

Properly prescribed and responsibly consumed, most medications pose little danger to driving safety. However, some medications come with serious side effects including drowsiness, audio-visual distortions, irritability, and even seizures. These side effects, which can result from either the presence or absence (e.g. withdrawal) of a prescription medication, pose serious – even lethal – risks when coupled with driving. Just imagine if a driver, traveling at 65mph on the highway, unexpectedly falls asleep or experiences convulsions or a seizure. Terrifying, isn’t it?  

Of course you may know firsthand of the terrible consequences if you or a loved one have been seriously injured by a driver who lost control of a vehicle while experiencing medication-related side effects. While you may not harbor the same bad feelings for this type of driver as you would a drunk driver, you may still hold him or her responsible for the tragic toll taken on your person and property. Ignorance of the existence of side effects or the possibility of their occurrence while driving is no excuse. It is the responsibility of a driver to know the effects of the prescription medications they are on, just as it is the responsibility of the driver’s prescribing physician and pharmacist to inform the driver, in writing, of any possible side effects.  

When lack of awareness or forgetfulness leads to an accident, legal liability may still be rightly imposed.  This is the basis for you seeking compensation for your personal injuries, medical expenses, pain and suffering, lost income due to missed work, and other losses – even from a driver who was unaware of the potential side effects that played a role in the accident that caused your injuries. To seek the compensation you need and deserve for your losses, contact a dedicated and skilled San Diego personal injury attorney. Time is of the essence in filing a personal injury lawsuit, so do not delay in contacting an experienced attorney.

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