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Will vs. Living Trust vs. Living Will: Key Differences

When an estate plan is developed, some of the key components include a will, living trust, and living will.  Since these terms are frequently confused, let’s look at each and explain the differences.

What is a Will?

A will is a legal document detailing what an individual wants to happen after they die. This includes their final wishes regarding their remains, as well as how they want their money, assets, and property to be distributed. It also allows individuals to name a personal guardian to care for minor children, and a person to manage property if it must be left to minor children. However, a will does not allow you to entirely avoid formal probate in California (except in cases of Small Estate Affidavits or Spousal Set Aside). Instead, a will may allow streamlining of the probate process.

What is a Living Trust?

Much like a will, a living trust (also called a “revocable living trust”) documents how you want your affairs handled after you pass away.  The major difference between a will and a living trust is that living trusts do not require going through probate (i.e., Probate Court).  Additionally, a living trust will take effect as soon as it is created – it allows you to control your assets (real property, personal property, investments, cash, etc.) while you are still alive, but then have it distributed to beneficiaries upon your death.

There are numerous considerations to having a living trust, so consider the pros and cons with your attorney.  In addition to not requiring going through probate, a living trust can also: safeguard your assets if you become mentally incompetent; provide more flexibility and control over the timeline and disbursement to beneficiaries; and maintain privacy, since it is managed by the trustee and not entered into public court records.  On the con side, a living trust is more complex than a will, and involves paperwork and record-keeping, which can be costly and time-consuming.

What is a Living Will?

Another name for a “living will” is an “advance healthcare directive.” This allows a person to dictate how they wish to be cared for in a life-or-death situation.  It lets your physician, family, and friends know your health care preferences, including the types of special treatment you want or don’t want at the end of life.  It also specifies your desire for diagnostic testing; approval or disapproval or certain surgical procedures; the location of your primary care facility; medications to avoid; whether or not to attempt cardiopulmonary resuscitation; and organ donation.

Do You Need Some or All of Them?

While you should seek the advice of your attorney on the appropriate selection of these documents for your situation, some generalizations can be made.  Most people who wish to have an estate plan are thinking about the impact of their passing on their loved ones.  As such, a living will/advance health care directive is typically recommended to ease decision-making in a life-or-death circumstance.  As for a will, your attorney can advise whether to include both it and a living trust in your estate plan, which can allow you to take advantage of each tool’s benefits.  The use of a living trust is less clear-cut, so discuss the pros/cons and your specific situation with your attorney.

Specialized Estate Planning Expertise

Taking the time and effort to create an estate plan is one of the most thoughtful steps you can take for your family and loved ones.  For many families, the less decisions that are left for your heirs, the better it is for all concerned.

At Mortensen & Reinheimer, PC we have decades of experience in helping clients to navigate through myriad issues in estate planning.  If you need legal expertise in addressing your specific estate planning needs, please contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.

About the author:
Tamsen R. Reinheimer, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). She has significant experience in all aspects of estate planning, trust administration, and probate. Contact Tamsen at tamsen@ocestateplanning.net.

Breast Lift and Implant Options

Weight loss medications are in high demand in the United States. With the success of weight loss comes the after-effect of excess skin, and with it many women are drawn to plastic surgery to improve the appearance of their breasts.

As with other parts of the body, changes seen in the breasts due to major weight loss may hinder a woman from feeling good about her appearance.

Many women have been coming in to our office for an evaluation to improve the position and volume of the breasts after weight loss. Options include a breast lift and/or an implant. Of course, the changes that have occurred in skin quality (sagging), and volume (size) vary, so Dr. Zeineh discusses with each patient the best way to achieve their goals.

Men – Gynecomastia/Breast Reduction

Male patients may also notice extra tissue in the chest region after significant weight loss. Quite often this excess tissue is not responsive to additional dieting or exercise, and the visible impact can understandably affect body image.

Surgical options to resolve these concerns include liposuction and also skin removal and lifting the tissue. This surgery is performed as an outpatient procedure. Most patients return to work within a week.

Book Now to Fit Your Schedule!

We invite you to come explore your options for your best look.  Book now for your appointment – contact us now at 657.722.1400 to lock-in a time that is convenient for you.

We look forward to seeing you.

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About Linda L. Zeineh, M.D., FACS

Dr. Zeineh is an active member of the American Society of Plastic Surgeons and the American Society for Aesthetic Plastic Surgery. She combines over 18 years of experience with cosmetic and reconstructive surgery in private practice with new technology and techniques in the care of her patients. Her first priority is the satisfaction and well-being of her patients, providing compassionate and personalized care.

A complete range of non-surgical and minimally invasive rejuvenation procedures are personally performed by Dr. Zeineh on her patients to achieve and maintain a youthful, refreshed, and natural appearance, including facial injections, skin tightening and facial/body contouring. Surgical procedures that Dr. Zeineh performs include: facial rejuvenation, body contouring, reconstructive and cosmetic breast surgery, and reconstructive surgery.

Are You a Caregiver? What You Need to Know About Estate Planning

(Editor’s note: This article will deal primarily with caregiving for the elderly, particularly as it relates to family members providing for daily care and helping with estate planning concerns).

Along with the many other day-to-day duties of a caregiver, attending to estate planning for those they look after can help give peace-of-mind for all concerned.

Quite often caregivers are the same family members who make sure the parents (trustees) have an estate plan, as well as preparing contingency planning for health care.  Further, it is important to complete estate planning while the trustees still have the capacity to do so.  This can help ensure that the trustee’s wishes are respected and their affairs will be managed in the best way for their needs.

So, it is important for family caregivers to know what should be included in an effective estate plan, in particular, as it impacts themselves and the person for which they are providing care.  The following key components should be evaluated and discussed with an estate planning attorney:

• Will - A will is a legal document detailing what an individual wants to happen after they die. This includes their final wishes regarding their remains as well as how they want their money, assets, and property to be distributed.
• Living Trust - Much like a will, a living or revocable trust also documents how you want your affairs handled after you pass away. The major difference between a will and a living trust is that living trusts do not require probate. Additionally, a living trust will take effect as soon as it is created.
• Advance Health Care Directive – This allows a person to dictate how they wish to be cared for in a life-or-death situation. It lets your physician, family, and friends know your health care preferences, including the types of special treatment you want or don’t want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation and organ donation.
• Power of Attorney (POA) - This document that allows you to appoint someone to manage your money, property, and medical decisions if you become unable to do so yourself. There are several types of POAs for different situations, so always speak to a lawyer to determine the best option for your situation. 

What if the caregiver is giving up their livelihood or lifestyle?

Family caregivers often devote a great deal of their lives to caring for a loved one, giving up their other life interests and even stopping working.  Quite often, the caregiver is also a beneficiary, so it is common for these contributions to be acknowledged through compensation while providing the care and/or a special allocation from the trust assets (which sometime involves gifting the residence).  This should be explained to other relatives while your loved one is still able to convey their wishes, as well as being clearly detailed in estate planning documents. 

How are long-term care costs handled? 

If you are the primary caregiver for a loved one and it is determined that a long-term care facility better suits their specific needs, the estate plan can designate specific funds from the estate to cover those costs.  Of course, this possibility should be addressed in advance while the trustee has the capacity to work with legal counsel in preparing the estate plan. 

There are many other estate planning-related concerns that caregivers may have, such as: 

• What are my legal responsibilities?
• How do I interact with the executor?
• If something happens to me, who will take over my role?
• What if the loved one has dementia?
• If the loved one dies, what do I need to do?
• Who will take care of the possessions?

Talk with an experienced estate planning attorney about these and other concerns.

Decades of Experience Working with Caregivers and Trustees

The role of a caregiver in today’s world is increasingly important, especially since many elderly people prefer to stay at home instead of moving to a senior care facility.  As can be seen, there are many issues and questions to be addressed in order for a caregiver to clearly understand and fulfill his or her role.  Further, attending to these items can be crucial in heading off family conflicts.

It is important to document one’s wishes before it’s too late, so whether you are the trustee or a family caregiver,  we invite you to contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.

About the author:
Tamsen R. Reinheimer, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). She has significant experience in all aspects of estate planning, trust administration, and probate. Contact Tamsen at tamsen@ocestateplanning.net.

Leap Year Specials on 4 Popular Procedures

ONLY 2 WEEKS LEFT FOR 30-DAY SPECIAL!

2024 is a special year because it is a leap year, a once-in-4-years event.  In celebration of leap year, we are offering a 30-day special on 4 of our most popular facial rejuvenation procedures:

• BOTOX® 
• DAXXIFY® 
• RHA® Collection, the “Designer Filler”
• Threadlifts

5th Option! As an added bonus, we are including the new injectable SkinVive^TM from Allergan, as part of this 30-day special.  SkinVive^TM is an injectable gel to improve skin smoothness of the cheeks, “The first and only FDA approved hyaluronic microdroplet injectable in the US to improve skin smoothness of the cheeks, increase hydration, and provide a lasting glow.”

Book Now to Fit Your Schedule!

We invite you to come explore your options for your best look.  Book now for your appointment – the special runs from Feb 29 through March 31^st, so contact us now at 657.722.1400 to lock-in a time that is convenient for you.

To accommodate your schedule, Saturdays are also being offered in March!

We look forward to seeing you.

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About Linda L. Zeineh, M.D., FACS

Dr. Zeineh is an active member of the American Society of Plastic Surgeons and the American Society for Aesthetic Plastic Surgery. She combines over 18 years of experience with cosmetic and reconstructive surgery in private practice with new technology and techniques in the care of her patients. Her first priority is the satisfaction and well-being of her patients, providing compassionate and personalized care.

A complete range of non-surgical and minimally invasive rejuvenation procedures are personally performed by Dr. Zeineh on her patients to achieve and maintain a youthful, refreshed, and natural appearance, including facial injections, skin tightening and facial/body contouring. Surgical procedures that Dr. Zeineh performs include: facial rejuvenation, body contouring, reconstructive and cosmetic breast surgery, and reconstructive surgery.

How Does Divorce Affect Your Estate Plan?

If you are in the midst of a divorce, it’s easy to overlook estate planning.  However, doing so will protect your estate from your former spouse and give you peace of mind knowing that your wishes will be honored.  If you are contemplating divorce or have recently divorced, you should review your estate plan with your attorney to determine whether changes are needed to reflect your current wishes.

This article provides a very brief overview of common issues.  Please note that this is a complex area of law, so it is important to consult an experienced estate planning attorney to help in protecting yourself and your heirs in the event of a divorce.

During the Divorce Process

During the divorce process, you have limited ability to make changes or revoke estate planning documents.  However, you should consider the following available options:

• Execute, update, or revoke your will – Some changes may be needed while your divorce is pending. However, note that you cannot disinherit your spouse from his or her share of the community property.
• Updating powers-of-attorney and advanced health care directives
• Name guardians for your minor child – Upon your death, your spouse will likely be given custody of your shared children. However, you can still name a guardian in the event that your spouse does not take custody.

There is a much longer list of prohibited estate plan changes, such as creating new trusts to hide assets; transferring, encumbering, hypothecating, concealing, or in any way disposing of property out of community property accounts without the written consent of your spouse or a court order; and creating or modifying a non-probate transfer without your spouse’s written consent (which includes life insurance, revocable trusts, IRAs, beneficiary designations, and profit sharing pension plans).

After the Divorce Is Finalized

Once the divorce has been finalized, California automatically changes your estate plan in several ways, including: removing your ex-spouse as an heir to your property; removing your ex-spouse as an executor, trustee, and power-of-attorney; and dissolving any living trusts that your ex-spouse and you created.

You will need to update your estate plan immediately following a divorce.  If you fail to do so and then pass away, it can lead to expensive and time-consuming litigation for your heirs. There are several key items to consider:

• Updating your will and living trust. This includes reviewing all beneficiaries and executors, and ensuring proper disposition of assets previously held jointly with your ex-spouse and any assets held in trust.
• Updating Power-of-Attorney and Advanced Health Care Directives. Determine who should now handle these critical decisions.
• Disinheriting your spouse from any insurance policies or retirement plans in which he/she is named as beneficiary.
• Update named beneficiaries on life insurance policies, retirement accounts, bank accounts, and other financial accounts.

Contemplating Divorce?

Considering the above, if you believe that your marriage is ending but you haven’t formally filed for divorce yet, you should meet with your estate planning attorney before filing.   You’ll want to consider what might happen if you pass away prior to the divorce being finalized, and to evaluate beneficiary designations and other key issues after the divorce is completed.

Specialized Estate Planning Expertise

If you are going through a divorce and are concerned about estate planning, Mortensen & Reinheimer, PC understands and can help you.  If you need legal expertise in addressing your specific estate planning needs, please contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.

About the author:
Tamsen R. Reinheimer, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). She has significant experience in all aspects of estate planning, trust administration, and probate. Contact Tamsen at tamsen@ocestateplanning.net.

New Options for Roth 401(k)s – How to Maximize for Your Retirement

New Options for Roth 401(k)s – How to Maximize for Your Retirement

New Options for Roth 401(k)s – How to Maximize for Your Retirement

How to Choose a Probate or Trust Litigator

Making the decision to hire an attorney to represent you and your interests in a probate or trust dispute, whether you are a fiduciary, a beneficiary, or an heir, is a major turning point in an estate that most people would prefer to avoid. While a smooth drama-free administration is ideal, you do not always have control over that, or the people involved. Sometimes, retaining a good attorney is the only way to protect the rights of you, the estate, or its beneficiaries.

To help you build a base of understanding, let’s look at the Trust and Probate process, when litigation is necessary or advised, and how to select the best litigator for your needs.

Overview of the Probate Process

After a person dies (the decedent), unless they have a Trust or transfer-on-death planning in place, the person’s estate will have to go through “Probate” in the Probate Court. The person in charge of the Trust or Probate estate (i.e., trustee, executor, administrator) is called a “fiduciary.” Probate is the legal process necessary to transfer or inherit property, as well as payment of the decedent’s liabilities, after the decedent passes away. Probate determines who the decedent’s rightful heirs are, whether by Will (in cases where the decedent has a Will) or the heirs-at-law (in cases where there is no Will). The Probate process generally takes about a year or more to complete. If you need to go to court, this is commonly called “going through probate.” In order for a party to start the probate process, they must file a petition along with other paperwork with the court.

Trusts are typically implemented in order to avoid the courtroom Probate process. In cases where the decedent died with a Trust, going to court generally is not necessary, although a trustee (or beneficiary) is strongly encouraged to retain counsel to advise them on the administration process and their rights along the way.

What is Probate and Trust Litigation?

Most Probate and Trust administrations do not involve litigation, meaning there are no disputes that cannot be resolved informally. Litigation is the process of going to court to resolve disputes that arise during administration. Such disputes generally involve: Trust/Will Contests, accounting issues, property rights, beneficiary rights, creditor claims, breaches of fiduciary duty, conversion of assets, and financial elder abuse. Probate and Trust litigation begins when someone files an action in the Probate Court seeking relief against the estate or against a person involved in the estate, typically regarding one of the above disputes.

Probate and Trust litigation typically occurs in an emotionally-charged environment because these types of disputes typically involve siblings, children, grandchildren, or other family members with a long history of dynamics that tend to surface when inheritance is involved, such as conflicts over distribution of estate assets, control of family businesses, who gets real estate, etc. A good litigator will attempt to resolve disagreements through informal negotiation or mediation before going to court in order to avoid costly litigation and court trials. However, informal resolution only works when all parties have a desire to participate; in other cases, going to court may be the best option. Even still, negotiations may continue throughout the litigation process.

When is Litigation Necessary?

Common reasons for a person to initiate Trust or Probate litigation include:

• To contest the validity of a Will or Trust.
• To claim financial elder abuse or conversion of property against another
• To reclaim property that belongs to the estate
• To remove/appoint a trustee or executor/administrator
• To request the court to order the trustee or executor/administrator to perform a certain act
• To request the court to order the trustee or executor/administrator to provide an account of their activities
• To enforce the rights of the beneficiary or heir.

For a more detailed discussion of what Trust litigation involves, which could involve a broad range of trustee, beneficiary, and creditor issues, please see our article “When is Litigation Necessary in Trust Disputes.”

How to Choose a Litigator

Here are several criteria to consider in hiring a Trust or Probate litigator:

• Experience – Your litigator should bring to the table extensive experience in handling similar matters. Probate law can be extremely complex and has its own set of rules, processes, and procedures that differ from every other type of civil litigation.  Your attorney should understand every aspect of these and provide skilled guidance to you throughout the process. In addition to knowledge of California Trust & Probate Law, a good litigator should also be familiar with the nuances of their local Probate courts and Probate judges, who often have their own set of internal rules and idiosyncrasies that only an experienced Trust and Probate litigator can appreciate.
• Focus on litigation – Some Trust and Probate lawyers focus solely on litigation, while others focus solely on the administrative (transactional) side; some do both You may find that an attorney who does both is more adept in the early stages of a dispute, which enables a higher chance of early resolution (i.e., negotiations and possibly mediation).  However, once the matter turns into a court filing (litigation), it is usually more effective to hire a full-time litigator.
• Communication – Does the litigator communicate clearly with you, in terminology that you understand? Do you feel comfortable and at-ease?
• References – While a lawyer is not permitted to divulge specifics about prior cases and clients due to attorney-client confidentiality, you can check for client reviews, Google ratings, and Yelp reviews. You can also ask other lawyers their opinion of a lawyer you are thinking of hiring for your case.
• Fee structure – Ask the lawyer about their fee structure and estimated costs for your case. While California has a statute for typical probate matters that sets the attorney’s fee based on a percentage of the gross value of the Probate estate, Probate litigation is generally billed at the lawyer’s hourly rate, as is Trust administration and Trust litigation.

Decades of Probate &Trust Litigation Expertise

Our attorneys not only have the expertise and experience to handle your Probate or Trust matter skillfully and efficiently, we also care about our cases and clients.  Please contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.

About the author:
Noah B. Herbold, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). His primary focus is assisting clients with litigated matters such as: Trust Contests, Breach of Trust, Fiduciary Appointment and/or Removal, Asset Ownership, Beneficiary Rights, Determination of Heirship, Elder Financial Abuse, Property Disputes, and Conservatorships. Contact Noah at noah@ocestateplanning.net.