Estate and Trust Confusion | Keys to Understanding
I’m Mike Hackard of Hackard Law. We respond to more than one thousand inquiries each year from potential clients. We share knowledge, and we also learn a lot from these inquiries.
Most questions concern estate, trust and elder financial abuse litigation. Other callers seek recovery for catastrophic, unexpected, and disastrous injuries caused by others. There are no dumb questions.
We work to help, assist and advise. Not all inquiries turn into cases. Not all cases are accepted.
Those that are accepted require a meeting of minds, compliance with ethical standards, and consensus on going forward.
Today I’ll talk about a particular set of inquiries: Estate, trust and elder financial abuse. Knowledge of this area of law is not intuitive. It doesn’t come naturally. The California Probate Code that sits on my desk is 1,252 pages long.
My favorite trust resource, also on my desk, is eight volumes and 3,464 pages long.
The need for voluminous information underlies the truth that “google” lawyers face a tough task. An hour, two or even ten on your computer may not get you too far.
Given this, I’ll share some brief, simple and unadorned thoughts as to the gateway to understanding this area of law. Inquiries regarding a decedent’s estate start with the relationship between the decedent and the inquirer. Most calls involve families, offspring, and descendants. Most inquiries focus on rights to a decedent’s assets.
A simple way to think of this is, what are the gates to the birthright, inheritance, or entitlement to a decedent’s estate? Basic rights apply where a decedent dies without an estate plan. No will, no trust, no contracts. This is called intestacy.
Rights depend on relationships. Children inherit everything if their parent dies with no spouse. Spouse inherits everything if spouses dies with no children, parents, sibling, or nieces or nephews.
Different statutory allocations are set on a variety of other circumstances. If in doubt, look at the law. Another gateway to inheritance is a will. A will is a legal declaration of a person’s wishes regarding the disposal of their property after death.
A trust is a fiduciary relationship in which one party, known as a trustor, gives another party, the trustee, the right to hold title to property or assets for the benefit of a third party, the beneficiary. This is a common gateway to inheritance.
Wills and/or trusts often don’t dispose of all assets. Many assets pass by nonprobate transfers. Nonprobate transfers are transfers of property that occur on the death of the decedent and that pass property to a beneficiary outside of regular probate channels.
Examples of nonprobate transfers include:
- Real property that is held in joint tenancy.
- Bank or brokerage accounts held in joint tenancy or with payable on death (POD) or transfer on death (TOD) beneficiaries.
- Property held in a trust.
- Life insurance or brokerage accounts that list someone other than the decedent as the beneficiary.
- Retirement accounts.
When it comes to inheritance questions, it’s helpful to remember that different gateways give different rights. If you want to speak with us about your questions, issues, and potential actions to preserve your inheritance, call us at Hackard Law: 916 313-3030.
We’ll be happy to hear from you.
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