Components of a Good Estate Plan

estateplanningA thorough estate plan should be designed to avoid probate, save on estate taxes, appoint someone to act for you if you become disabled, and protect assets if you need to move into a nursing home.

A will is only one element of a complete estate plan. All estate plans should also include a durable power of attorney. A trust is useful to avoid probate and manage your estate during your life and after. Medical directives and beneficiary designations are supplements you should consider.

Power of Attorney
A power of attorney allows a person you appoint as your “attorney-in-fact” to act in your place for financial purposes should you ever become incapacitated. The person you choose will be able to step in and take care of your financial affairs. Appointing an “attorney-in-fact” prevents additional time and expenses incurred in court during the finalization of your estate.

A will is a legally binding statement outlining who will receive your property at your death, and appoints a legal representative to carry out your wishes (executor). It also allows you to name a guardian for any minor children you may have.

A trust is a legal arrangement through which one person (or an institution), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” There are several different reasons for setting up a trust, but the most common is to avoid probate. If you establish a revocable living trust that terminates when you die, any property in the trust passes immediately to the beneficiaries. This can save time and money for beneficiaries.

Specific trusts can help donors qualify for Medicaid, result in tax advantages both for the donor and the beneficiary, or be used to protect property from creditors.

Medical Directives
A medical directive can encompass multiple documents including:
•Health care proxy,
•Durable power of attorney for health care
•Living will
•Medical instructions

These documents designate someone you choose to make health care decisions for you if you are unable to do so, and instruct your health care provider to withdraw life support if you are terminally ill or in a vegetative state.

Beneficiary Designations
While not formally considered a part of your estate plan, you should make sure your retirement plan beneficiary designations are up to date. If you don’t name a beneficiary, the distribution of benefits may be controlled by state or federal law or according to your particular retirement plan and could be subject to negative tax consequences.

Inheritance Laws

Property-Ownership-–-An-Estate-Planning-Basic-770x262Inheritance laws are determined on the state level. These laws come into effect when the person who died left no will or his or her will is invalidated due to not following legal formalities, being the product of undue influence or duress, the testator lacking the requisite capacity or for other reasons as determined under state law. Additionally, some inheritance laws take effect even if a valid will was left and if the will says something that contradicts state law.

Rights of a Spouse

A spouse who survives his or her spouse often has several rights. The nature of these rights often depends on whether the decedent died in a state that recognizes community property or common law.

Community Property

California, Arizona, Nevada, New Mexico, Texas, Idaho, Wisconsin and Washington use the community property system. Alaska couples can opt in to community property rules, but they must have a signed written agreement in order to do so.

In community property states, each spouse is considered to be the equal owner for any income or property acquired during the marriage, generally speaking. Some property is exempted, such as property acquired as a personal gift or inheritance or property that was designated as separate property due to an agreement between the spouses. A spouse can only dispose of his or her one-half interest in community property and not that of his or her spouse. Additionally, a spouse can dispose of the entirety of separate property as he or she sees fit.

Common Law States

In all other states, spouses are not entitled to a one-half interest of the marital property. However, state laws usually prevent a spouse from disinheriting his or her spouse. Common law states often allow a spouse to take an elective share or to take what is listed for him or her in the will, whichever he or she chooses.

The elective share is usually between one-third and one-half of the decedent’s property. However, some states determine the amount of the elective share by assessing the length of the marriage. Spouses who have been married for only one year may only be entitled to three percent of the estate, according to some state laws. Taking an elective share may require the spouse to assert this right with the probate court.

Other Provisions

Inheritance laws often protect other rights of the surviving spouse. For example, inheritance laws may state that the spouse has the right to live in the family home until his or her death. A spouse may also be entitled to an allowance to support himself or herself while the case is pending in probate court. He or she may also have the right to claim personal property in the marital home.

Children’s Rights

Generally speaking, children do not have the right to inherit a parent’s property if the will does not include them. However, state inheritance laws do protect children who were unintentionally omitted. For example, if the will was created before the child was born and was never changed, the child may have a right to part of the decedent’s estate. The same may apply for a grandchild or other descendant if the child pre-deceased the parent.

Parents who wish to intentionally disinherit a child may be required to specifically mention this information in the will in order for it to be valid.

Intestate Succession

The laws of intestacy of each state determine who stands to inherit and in what proportion. If there are no surviving descendants, the surviving spouse may be lawfully entitled to all of the estate. If there are surviving children, the spouse and the children may share in equal parts. Intestate succession tables often compare the degree of kinship in order to determine who should inherit if there is no surviving spouse or child. In some circumstances, a parent, grandparent, sibling, grandchild, aunt or uncle may be entitled to a certain portion of the estate if closer relatives have not survived the decedent.

Inheritance Tax

Some states impose an inheritance tax on the person who receives property from a decedent. There is no federal estate tax at the time of publication. That tax is assessed on the estate itself while inheritance tax is incurred on the recipient, if applicable. Even if inheritance tax exists in a state, many beneficiaries are exempt from it. Many states exempt a spouse, children and other close family members from having to pay an inheritance tax.

What to Consider When Considering An Estate Planning Attorney?

The list of reasons supporting the consideration of consulting with an “Estate Planning Attorney” is long and an important consideration by those of us wanting to assure that our assets get divided and passed on to our loved ones and others in a way that reflects your wishes.

It may look like a term for people of considerate wealth, but everyone has an “estate.”

In fact, your car, home, other real estate, investments, checking account, and even furniture and other personal possession comprise your estate. Naturally, you cannot keep these things when you pass away, but you can control how your estate is given to the loved ones and organizations you care about. In short, estate planning is a clear set of instructions that dictate whom you want to receive something of ydenver-estate-planningours, what they’ll be receiving, and when and how they’ll receive these items. An “Estate Planning Attorney“ plays a key role in ensuring that your estate is fully and clearly drafted, and for when that day comes, an attorney provides proper management and distribution of the estate.

Importance of Estate Planning

It’s not easy to plan for death, but we have also seen, first hand, how an improperly managed estate can create complications for the surviving family members. Likewise, without an estate, the respective state’s Probate Laws may then control and determine the whom, what, when, and how of your estate. Effectively planning and estate administration isn’t an expensive process, and regardless of your assets, you may find endless benefits for you, your family and loved ones, and others. This is especially true when setting up a trust, for example, that allows significant tax benefits for the assets you wish to pass on.

Practice Areas

The following is a list of some of the common practice areas by those Law Firms specializing in Estate Planning.

Charitable Trusts: An irrevocable trust where your assets are given over or used to establish a charitable foundation. Includes complex tax breaks for the donor, and can provide lifelong income for family.

Contested Wills: After death, surviving family members may contest the making of a trust or will. Homer Law has extensive experience in will contest and estate litigation to ensure your wishes are properly administered.

Health Care Directives: These comprise several types of directives for end-of-life care and health care for when you’re unable to make decisions by yourself.

Last Will & Testament: The most common, and essential, component of an estate plan. Last wills and testaments name the executor of the estate to, according to your wishes, distribute assets among loved ones and organizations.
Life Insurance Trusts: An irrevocable, non-amendable trust that gives you greater control over your life insurance policies and the benefits paid by them.

Living Trusts: A living trust helps avoid complex, costly, and time-consuming probate processes. It also eliminates the requirement for public notices while streamlining the distribution of assets.

Power of Attorney for Property: A legal document that transfers legal right to an attorney or agent for management of your property if you are unable to do so (either through disability or death).

QTIP Trusts: Used by married couples to ensure unlimited marital deductions while guaranteeing that assets pass down to children upon death of the survivor.

Special Needs Trusts: Protects the inheritance of a disabled person while ensuring that, upon receiving the inheritance, the disabled person does not lose access to essential government benefits.

Supplemental Needs Trusts: Similar to a special needs trusts, but allows the establishment and funding by someone other than the Beneficiary or spouse.

By examining your assets and defining a plan that will best protect your family and loved ones, you will be giving yourself as well as your family considerable peace of mind.


No estate is too big or too small; everyone has an estate and when the time comes—it is a “when” and not an “if”—ensuring greater financial security and peace-of-mind to your family is one of the most selfless, loving things that you can do. Furthermore, estate planning is not solely for the retired. Mortality or the possibility of being unable to decide matters for yourself can come at any time, and it is essential to be prepared.

A House Divided: Avoid Estate Planning Disaster

Your relative’s estate plan is a mess – but your family doesn’t know this yet. Planning isn’t really the problem: there is no planning. And if there’s no planning, then a house will pose a special challenge.

Homes are often the biggest part of a decedent’s estate. Estate planning for the distribution of a home is frequently met with understandable reluctance – no one likes to contemplate his or her own passing. Such contemplation is even more difficult with respect to our homes.

Our homes have meaning – more than bank accounts, stocks or personal property. Our homes are the places where our children grow up, family gatherings are held, and where grandchildren bring joy. We work to make our homes places of comfort and safety.

We can feel the pain of Jesus – the longing for home – when he tells a follower that “the foxes have holes and the birds of the air have nests, but the Son of Man has nowhere to lay his head.” We know that these words bring more than one meaning – but we empathize with what is unsaid – that the homeless suffer and hurt.

Estate planning for homes is not without its challenges. Many adult children live in their parent’s home. When a parent dies, the child – however old – living in the family home does not want to leave. Written estate plans can address this issue – maybe the child will be provided a life estate in the home – maybe a specified time of occupancy – maybe some additional money to move – whatever the resolution, the issue should be addressed.

Mistaken plestate-planninganning and no planning at all can create mischief and hostility among surviving family members. To get to the heart of the matter, it is necessary to understand certain property and family dynamics – circumstances common and familiar to estate litigators.

In a given estate case, a home may have a small mortgage or no mortgage at all. Family members rarely go to battle over a home that has no equity and is a much bigger liability than an asset.

Sometimes a family member – many times a parent, an uncle or aunt or brother or sister – completely fails to plan or neglects prior planning. A surviving spouse may fail to clear title to property after the death of the first spouse. Later, when the survivor dies, family members will have to resolve this – not always an easy task. It’s made all the more difficult by the inclusion of stepchildren, the absence of records, or squabbling siblings skeptical of any effort at leadership.

A home within an estate may be the separate property of one spouse with a community interest established by a history of maintenance and bank payments with community funds. A single person may own the home – a person whose death reveals long-held family divisions.

Gifting of all or part of home interest brings estate scrutiny over the family member’s capacity to gift and/or whether undue influence played a part in the family member’s decision to gift. Disputed estate cases abound, with the gift-giver’s medical records identifying the existence of Alzheimer’s disease or moderate or severe impairment prior to the time of the gift.

Particular dilemmas arise when a formal estate plan or some type of other documents identify the homeowner’s desire that a family member live in the home after the home owner’s death. Such plans should be carefully crafted. If there is to be a life estate, who is to pay for the mortgage and ongoing costs of maintenance and taxes? Will the life tenant or the heirs who are to receive the property at the death of the life tenant pay these expenses?

Problems in an estate can quickly arise even when a house is willed to two or more people. One person may want to keep the house, while others want to sell it. One may want their sister in law to list the home, while another says that they should sell the house themselves. Some don’t want to sell this year or next. Others think that the house should be mortgaged, the money split, and the house rented. You get the idea. Disagreements come thick and fast.

Failing to plan for the disposition of a house in an estate plan is planning to fail. There is a better way – it involves some careful thought, along with a commitment to a decision. Just remember – it’s better to plan for the future than to leave the fate of your home to chance – and possibly to chaos.

Finding the Right Probate and Estate Attorney

imagesWhen it comes to dealing with the loss of a loved one, one of the last things that any family member wants to do is call a probate or estate attorney. This is understandable given that the family is grieving with the loss. Finding a lawyer should be not be a complicated matter. Finding the right lawyer to handle an estate, whether it requires planning or for the will to be probated, however, requires due diligence.

Arranging for an appointment with probate or estate lawyer early on is always a very good idea even well before the loss of a family member occurs. The reason being is that you can plan effectively and have important questions answered that will help prepare you and others when the worst happens. For example, retaining the right estate lawyer can simplify the process and save the estate a significant amount of money in taxes and fees. Of course, it helps to know the type of questions that you should ask before meeting with the attorney. What follows are several of the most popular questions that will help you get a better idea of what you need to do in order to hire the proper probate or estate lawyer.

What Areas Of The Law Do You Practice?

You may have noticed that while most attorneys have a considerably broad range of experience, they tend to specialize in a particular area. When searching for a lawyer on the Internet or by a referral, make sure to visit the law firm’s website to confirm their areas of specialization. If the firm advertises itself as a “general practice law firm” or a “full service firm,” chances are that they only know the basic concepts when it comes to estate law. If you need a simple Will drafted, then that lawyer should suffice. If your estate matter has a hint of complexity, opt for a professional. Bear this saying in mind when hiring a lawyer for any type of matter “a Jack of all trades, is a master of no trade.”

During your in-person meeting, you should confirm their specialty by asking whether they practice other areas outside of estate or probate as part of their services. Generally speaking, attorneys who do not focus their services on estates or probate are less likely to have the specific knowledge and experience needed to excel in this particular part of the law. Estate law should be their primary focus, with ancillary services in areas such as real estate and guardianships.

Do You Have Experience With Similar Cases In The Past?

Certainly this is one of the most important questions that you can ask because it delves into the experience that they have had with this type of matter. Again, if you are drafting a simple will this question may be unnecessary. But if you are planning to hire the Jack-of-all-trades, this question should very well be asked, even in a simple will preparation matter. I’ve recently had a matter in which I was retained to probate a will. This document was so poorly drafted that the Judge and the clerks in that department could not figure out the true intent of the deceased. Because of this lawyer’s unfortunate drafting skills, the will had to be struck down, as if it was never drafted, and the estate had to pass by the intestacy rules in the state.

The more experience the lawyer has in such matters, the better the outcome should be in your case. While there is no guarantee that their past experience will generate positive results, at a minimum, they should understand the nuances and intricacies of probate and estate law.

Can You Estimate All Associated Fees?

While most NYC estate lawyers charge a flat or hourly fee for estate planning, contested and probate matters may be charged on a percentage basis of the estate. Depending on the type of fee, this will shape your follow-up question. For example, if the particular lawyer charges on a hourly basis, you can inquire on the estimated amount of hours such matters take. If the fee is flat, ask what type of complications may cause the fee to increase. Also, remember to inquire about court filing fees and any other fees or expenses that may be incurred.

Do you Regularly Appear in the Court Where This Case will be Assigned?

It seems that every county and judge have their own particular methods and rules that are slightly different than each other. The entire process will go far more smoothly if the attorney you choose has practiced regularly in that court and is familiar with the judge’s rules and procedures. This will tend to shorten the length of the matter and increase the chances of the case being successful.

Can You Estimate the Time Frame of the Process?

Time frames vary depending on the type of matter. A simple will should not take more than two weeks to be finalized, while a probate matter will take at least seven month to settle. Depending on the issues involved, some court proceedings battle it out for several years before anything is resolved. An attorney experienced in similar type of matters can provide you with an accurate estimated time.

What Is The Best Way To Reach You?

When deciding which estate lawyer to hire, it is important to take their accessibility into account. When you first made contact, were you able to speak to that lawyer right away? How long did it take for them to call you back? How soon were they available to see you? You want a lawyer who makes you a priority, even though they have twenty other new clients that month. You need to know that they can be easily reached in case you have additional questions, need to make changes, or the worst occurs. You’ll want to get updates on the status of the case as well, so you will need to know who to speak to and the likelihood of getting a hold of the lawyer when needed.

Nowadays, people are very busy. Lawyers are especially busy because they usually take on more than they handle at one time. Ask the lawyer you decide to retain on the best ways to reach him or her, whether it be by phone, email, or the website contact form. A law office that truly cares about their clients will be as communicative as possible and have a system in which they can respond quickly to your questions. All in all, it helps if you know what type of questions to ask of an attorney that will handle your probate or estate case.

Having a Plan for Your Family Is the Right Thing To Do

For most peopledownload, Estate Planning is a mystery; for others, it’s simply not a priority for the simple reason that there is always time to do it “later”. Most individuals consider Estate Planning to be an issue for elderly individuals. Unfortunately, it applies to all individuals in any walk of life because we are never promised tomorrow.

Most of us are familiar with Terri Schiavo and the legal battle that ensued between her parents and her husband. For those who are not familiar; at the young age of 26, Terri suffered a full cardiac arrest on February 25, 1990. She was later resuscitated but suffered massive brain damage to lack of oxygen to her brain and was left in comatose. After two and half months without improvement her diagnosis was that of a persistent vegetative state. For two years the doctors attempted any and all forms of medical treatments that may assist Teri in her recovery but were unsuccessful. In 1998 her husband made a petition to the court to remove her feeding tube pursuant to Florida law. Her parents, however, felt that there was still hope and that she was in fact conscious. This is when the 7 year long legal battle between her husband and her parents began. After 14 years of being in a vegetative state, the State of Florida made the determination in favor of her husband. The feeding tube was removed and Teresa Marie Schiavo died on March 31, 2005 at the young age of 41.

The legal issue here was Terri Schiavo did not have a written document authorizing or expressly stating what her intentions would be in this circumstance. The court had to make a determination as to who had the right to make that decision. The court had to decide whether the parents rights trumped the husband’s rights. In this case, the court determined the husband had the right to make that decision.

Most individuals don’t understand that this is more common than you would think. Sadly, you are never too young for the unfortunate to happen. It is tremendously important to plan ahead. Developing a proper Estate Plan will let YOU dictate what would happen if the unfortunate happened.

In an estate plan you will include legal documents such as a power of attorney, living will, pre-need guardian, health care surrogate, a trust and last will and testament. These documents all have specific meanings and specific instructions on each stage throughout your life. Most of these documents can be altered by you at any time.

A power of attorney is a written document that is made to designate a person to act on your behalf for a limited or a undetermined amount of time.

Documents such as the living will, healthcare surrogate and pre-need guardian would allow you to designate a person to act on your behalf on specific occasions as you direct them. Each document performs a particular purpose and for a particular time. Having these documents readily available will allow for your wishes to be carried through. Sometimes when family members are put in a situation to make these decisions it may not be the same outcome you would like it to have. It is always best to have your wishes written out. Often times these circumstances are emotional for all involved. Making decisions like the one that Terri’s family had to make isn’t easy. It comes with a lot of emotion and turmoil. However, it doesn’t have to be this way. The Terri Schiavo case has helped make strides to uniform the law in the case much like this. Being prepared for these circumstances will allow you to have a peace of mind.

S. Bay Neighborhood Law Firm Making Contacts at the S3 Tri-Chamber Mixer

Continuing its outreach to the Bay Area business community, the Mlnarik Law Group, LLC will be one of only eight Santa Clara exhibitors at this year’s S-3 Tri-Chamber Mixer & Mini Expo.  Held from 5:30 to 7:30pm, January 19, 2012, at the Doubletree by Hilton San Jose, the Mixer/Mini Expo is the joint effort of the San Jose Silicon Valley, Santa Clara and Sunnyvale Chambers of Commerce.

Hundreds of Chamber members will be on hand to make new business connections and strengthen old ties, and the Mlnarik Law Group will be prominently featured in their midst.  At last year’s event our fellow exhibitors included everything from a graphic design firm to a “troubleshooting” business consultant to a candy company run by local entrepreneurs.  The Mlnarik Law Group was on hand offering its legal expertise in all matters of corporate governance, including business formation, development, and maintenance.  How to decide between being an LLC, S-Corp, LLP, GP, or Sole Proprietorship?  What should you (or shouldn’t you) include in the employee handbook?  When is it necessary to use NDAs or “non-competes”?  What will be your web agreements and privacy policies?  Our attorneys cover all that and much more, and the Chambers of three Bay Area cities are getting to know us better with each new year.

However, the Mlnarik Law Group, LLC is much more than a business boutique.  As “A neighborhood law firm committed to your success”TM our work reaches into the areas of real estate, estate planning, family law, employment law, bankruptcy and fair treatment of debtors, not to mention general litigation on a case-by-case basis.  But why read about it here?  Come on down to the Tri-Chamber Mixer and Mini Expo and we’ll tell you all about it!

Jim Erickson, Associate