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Oakland Probate Litigation AttorneyWhen a person dies, the executor of their estate and their other family members will need to determine how to carry out their final wishes. These matters may be addressed during the probate process, in which the executor named in the person’s will files the will in probate court, notifies the person’s heirs and other interested parties, and oversees the process of distributing the person’s property to their heirs. If a will is contested, probate litigation may be necessary to resolve these disputes. These matters can be very difficult for family members, and if you are looking to minimize these issues and help your family avoid litigation, you can take certain steps during the estate planning process to prevent potential disputes.

Taking Steps to Avoid a Contested Estate

In many cases, wills and estates are contested because some family members are unhappy about the decisions that were made, or the terms of a person’s will may be unclear or fail to address certain assets. To prevent these types of disputes, it is important to make sure a will is drafted properly. By fully detailing your wishes and instructions, you can avoid uncertainty and do everything you can to minimize potential disputes regarding the distribution of your assets.

In addition to addressing issues in your will, you can also take steps to make sure certain assets can be passed to beneficiaries outside of the probate process. Ways to do so include:

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San Francisco County Estate Planning AttorneyWhile estate planning is important for everyone, it can be especially beneficial for business owners. A person who owns and operates a family business or who co-owns a business with one or more partners will likely be concerned about how to keep the business running, no matter what happens in the future. As a business owner nears retirement age, they may be considering an exit strategy that will allow them to leave the business in capable hands. However, a business succession plan can be important for owners of any age, since it will ensure that others are prepared to take over and continue operating the business if a person dies unexpectedly, encounters health issues, or is otherwise unable to manage business operations. 

Issues to Consider When Creating a Succession Plan

The primary concern that a business owner will need to consider is who will take over the business after they leave. Potential successors may include:

  • Family members or other heirs - When one or more members of a person’s family are involved in a family business, it may make sense to pass ownership of the business to these loved ones. This will keep a business in the family and ensure that the owner’s children or other members of their family can continue to reap benefits from the business. An owner may use their will to specify that business assets will be inherited by certain family members, or they may make plans to pass ownership of the business to a loved one following their retirement. However, an owner will want to consider a person’s level of involvement in the business and their ability to manage business operations, and this can help them ensure that the business will continue to be successful. If necessary, a succession plan may include a buy-sell agreement that will allow heirs who are not involved in the business to sell their share of the business to those who will be more closely involved in running the business.

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Bay Area Estate Planning AttorneyAs you get closer to the end of your life, you may need to make some difficult decisions about the medical treatment you will receive in certain situations. In California, you can create an advance health care directive that allows you to specify your wishes and ensure that you will be provided with the proper care. In some states, this type of directive is known as a living will. However, California law provides people with additional flexibility to make decisions about these issues. If you are considering how you want your medical care to be handled, an estate planning attorney can help you understand your rights and options and ensure that your advance health care directive fully addresses the issues that are important to you.

Elements of an Advance Health Care Directive

An advance health care directive will usually include a power of attorney for health care. This will allow you to name someone who will make health-related decisions for you if you are unable to do so on your own. Your agent could be your spouse, another family member, a close friend, or another person you trust to make sure you receive the care you need. You can provide your agent with the authority to make all health care decisions, or you can limit them to making certain decisions, while also providing instructions for the types of care you do or do not want to receive. Depending on the level of authority you grant to your agent, they may be able to either consent to or refuse different types of treatment; choose your health care providers or the facilities where you will receive treatment; approve different types of tests, surgical procedures, or medications; decide whether nutrition or hydration should be provided or withheld or whether you should be resuscitated; or make decisions about the disposition of your remains and the donation of your organs following your death.

Your advance health care directive can also include specific instructions about your care and treatment that you want to be followed, regardless of whether your agent will be making decisions for you. Typically, these decisions address end-of-life care in cases where death is imminent and you are unconscious or unable to communicate your wishes. You can address whether you wish your life to be prolonged or whether treatment should be withheld if the risks and negative effects of treatment would outweigh the possible benefits. You can also address palliative care and pain management, detailing whether you want to receive certain types of treatment that will alleviate your pain and discomfort. This will ensure that your wishes will be followed while eliminating confusion and uncertainty for your loved ones as they determine what types of care you should receive.

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Berkeley, CA Estate Planning AttorneyWhen a child’s parents die or become unable to provide the necessary care, guardianship will allow another person to step in and ensure that the child is provided for. However, children are not the only ones who may need this sort of care and supervision. Adults who are unable to fully care for themselves, including people who are developmentally disabled or seniors who no longer have the capacity to meet their own needs, can benefit from a form of guardianship known as conservatorship. A limited conservatorship will often be appropriate for these types of individuals, and people who are involved in these types of cases will need to understand their rights and the procedures that will be followed.

Types of Conservatorship

As with guardianship, a person may be named a conservator of the person or a conservator of the estate. A conservator of the person will be responsible for making sure the conservatee has the necessary food, shelter, clothing, and medical care. A conservator of the estate will be responsible for managing the conservatee’s assets and finances, including collecting income or benefits on their behalf and paying any necessary bills or expenses.

While there may be some cases where a conservator will have complete control over a conservatee’s person or estate, most of the time, courts prefer to establish a limited conservatorship. This will ensure that the conservator will provide the necessary assistance for the conservatee, while providing the conservatee with control over the aspects of their life that they are able to manage. This protects the conservatee’s rights, allowing them to make decisions for themselves while also offering the reassurance that a person who cares about them will make sure their needs are being met.

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Oakland Power of Attorney LawyerThere are a variety of situations where a person may need help from others due to health concerns, disabilities, or other issues. In some cases, this assistance may include making decisions about the person’s medical care and treatment or the management of their finances. To ensure that these matters are handled properly, a person can create a power of attorney that will authorize someone they trust to make decisions on their behalf. There are multiple different types of powers of attorney, and in many cases, it is beneficial to create a “durable” power of attorney that will remain in effect if a person becomes incapacitated.

Durable Powers of Attorney for Healthcare and Finances

A power of attorney is a legal document that grants a person the right to make certain types of decisions on someone else’s behalf. The person who creates a power of attorney is known as the “principal,” and the person who will be making decisions for them is known as their “attorney-in-fact.” A power of attorney is considered to be durable if it will continue to allow the attorney-in-fact to decide matters on the principal’s behalf after the principal has become incapacitated. That is if the principal experiences a physical or mental condition that prevents them from making their own decisions or communicating their wishes to others, the power of attorney agreement will continue to apply, giving the attorney-in-fact the power to act on the principal’s behalf.

For a power of attorney to be considered durable, it must include language that states that the powers granted to the attorney-in-fact will not be affected by the principal’s incapacitation. Typically, one of two statements will be used:

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