Don’t be a Fool this April- Plan ahead!

1300137640fZ1a4THappy April Folks!  We hope everyone enjoyed their Easter holiday (if it was celebrated)! Our office has been busy assisting clients with estate planning issues, probate hearings, child visitation modifications, writing a new e-book, working on an “Estate Planning 101” Basics seminar, working on our Vlog  and podcast series, and revamping our website! So we have been just a little bit busy!

How have you been? Have you been busy and completing your Estate Planning Homework Assignments? Have you made an appointment with an estate planning attorney in your area? (We have experienced estate planning attorneys in California, specifically Redwood City and San Jose AND we have a virtual law office to serve the rest of California 🙂 ) Are you just starting assignment #1? Don’t wait too much longer- you don’t want to be the April Fool who waited too long to create an estate plan (insert fake laugh here!).

So as promised here is some discussion about one of the Must Have Documents– a will. This scenario can apply to individuals either in their first, second or third marriage, or just have children from previous relationships; It can also be considered where there are issues of separate property and inheritance.

WHAT WILL YOU PICKReciprocal and Non-Reciprocal Wills

When thinking about your will, decide whether you and your spouse will execute reciprocal wills. Reciprocal wills are wills executed by husband and wife, which are exactly alike. This means that each will leaves the same asset(s) to the same person(s) in the same proportion. For example, Jane and John, each on their second marriage are married to one another, and each has one child from a previous marriage. They both execute wills, which leave everything to the other, and in case the other is deceased, one-half of the estate to Jane’s child and one-half to John’s child. Some things to keep in mind when deciding whether to execute reciprocal wills.

When executing RECIPROCAL wills, your spouse is free to change his or her will at any time. For example, John and Jane, each on their second marriage are married to one another, and each has one child from a previous marriage. They both execute wills, which leave everything to the other, and in case the other is deceased, one-half of the estate to Jane’s child and one-half to John’s child. Jane dies, and John inherits the entire estate. He then may change his Will to leave the entire estate to his child, and disinherit Jane’s child.

When executing NON-RECIPROCAL wills, you will need to determine what assets belong to each of you so that there is no confusion about what property each party may leave to his or her heirs. If you experience any difficulty reaching an agreement concerning ownership of your property, a pre-nuptial agreement or your state’s marital property, laws may dictate ownership of some or all of your property for you.

Your spouse is not required to inform you of changes made to his or her will.

Whether executing reciprocal wills or not, your spouse is free to change his or her will at any time and is under no obligation to inform you of the change. This means that he or she may remove your children as beneficiaries and leave their entire estate to their own children, without your permission or knowledge.

Feel free to contact our office if you have any additional questions! Enjoy this beautiful Spring weather!

You Don’t Have to Be Elizabeth Taylor….

Liz and her husbands

Liz and her husbands

You don’t need to be Elizabeth Taylor to be on your second, third, or even fourth or fifth marriage. If you have had more than one spouse, you have special estate planning needs, especially if you have children with each spouse. If you avoid these issues, it is almost certainly a way to create a less-than-desired result in the event of illness, incapacity, or death. The best way to have a smooth transition upon disability or death is to create a comprehensive strategy before you aren’t here to execute the papers.

Remarriage may result in cordial, but often not close, step relations. Frequently, such people thrown together by marriage simply tolerate each other until the biological parent dies or becomes disabled, or divorce occurs.

On the death of the biological parent, what happens? If proper estate planning isn’t done, the surviving spouse and step-parent has the option to take all that you intended to leave to your biological child.

By working with an estate planning attorney, you can ensure that both your new spouse and your children receive what you want them to. This can be done through either a prenuptial agreement and/or a fully funded trust (new post coming soon regarding “funding”).

Contact our San Jose, Fremont, or Redwood City Estate Planning Attorney. We will be more than happy to help you create the plan that best suits your needs or update the one you currently have.

Sesame Street says…..D is for Divorce

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I came cross this article published by the Huffington Post today about Sesame Street’s new workshop geared toward explaining divorce to children.  It was also discussed here in the Times.

Divorce is always a tricky situation and its even worse where children are involved. It is important that children know they aren’t the reason for your divorce and that no matter what happens the child is still loved by both parents.

I think this new initiative is amazing and will allow children to see that just because their parents are divorced, doesn’t mean that they are “different” or “weird” or that they have parents that don’t love them- it just means their parents have “grown up problems”.

Encourage your children to talk about their feelings about your divorce and don’t speak negatively about the other parent in the child’s presence. And remember don’t make the child feel like they have to choose a parent- it’s ok for them to love both parents and want to spend time with each of them.

Why Choosing a Guardian is Important.

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If you are a parent of minor children, you need a will!

Although parents often have their children baptized and assign godparents, legally, those godparents cannot be your child(ren)’s guardian if something happens to you or the other parent.

Only one Parent Dies

If only one parent dies, the surviving spouse or parent will generally be selected to be the guardian of the child(ren). Usually courts favor biological parents as the guardian unless the surviving parent is unfit or incapable of doing so.

If Both Parents Die

If the parents nominate a guardian in their will or in a separate document, the court will take this under consideration and give great weight to the deceased parents nomination. A nomination in Durable Powers of Attorney serve the same purpose in cases where the parents become so disabled that they cannot care for the children.

However, if the parents die without leaving a written nomination of guardian for their minor children, then any interested party/family member may petition the court to be named guardian. Close family members will usually be given preference.If no one “steps up” and petitions the court, the Public Guardian will take charge of the children. Children over 14 years of age may testify before the court as to their preferences for a guardian if there is a contest between to family members competing for the guardianship.

E-mail us at carmenrosaslaw@gmail.com to receive a free copy of our “12 Tips to Help Select a Guardian” or “Guidelines for Guardians“.

And as always, if your estate exceeds $150,000 it is always best to create a comprehensive estate plan!

What is your New Year’s Resolution? I know you’ve thought about it.

As many of you prepare for the new year and begin thinking of resolutions, you will all think about the FUTURE.

The future consists of a second from now, a minute, a year, even ten years.

Many of you will have financial and health goals- in those goals, it is important to remember that part of planning for the future is planning for unexpected occurrences and even death.

Is your family prepared if something happens to you or someone you love? What will happen to your home? Your children? Where will you be buried? Or will you be cremated? Would there be a memorial service in a church, temple, synagogue, or home? The holidays are a time for celebration, love and joy.

Enter the new year knowing you are better prepared- not for yourself, but for your child(ren) and family- create an estate plan. Find out more about estate planning and how to prepare your family for the future by contacting our office to schedule a consultation.

 

 

Note: Carmen Rosas is an attorney in California. She practices family law (divorce, custody, and support) and estate planning (wills, trusts, advance health care directive).