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Fullerton Elder Law FAQ

Your Questions Answered by Our Elder Law Attorneys

Elder law is a complex area of the law that can prove challenging to navigate without the insight and advice of a trusted attorney. At OC Elder Law, we strive to educate our clients and help them understand the laws and policies that govern the legal matters they are facing. Below, we have answered some of the most common questions about elder law, estate planning, probate, and related matters.

If you still have questions after reading our FAQ, do not hesitate to contact us at (714) 400-2373.

What is probate?

Probate is the court and process that looks after people who cannot make their own personal, health care, and financial decisions. These people fall into three general categories: minor children (under age 18 in most states), incapacitated adults, and people who have died without legal arrangements to avoid probate.

Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate to save money, spare their heirs the legal hassle, and keep their personal affairs private.

What is joint tenancy with rights of survivorship?

This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate when the first spouse passes away. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces, and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on a married couple’s estate.

What is a will?

A will is the document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the will maker dies and the original will is delivered to the probate court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets to your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

What is a living will?

Sometimes called an advance medical directive, a living will allows you to state your wishes regarding your end-of-life care in the event that you cannot express your wishes yourself. In your living will, you can describe what types of medical life support measures you wish to have or decline certain measures if you have a terminal condition. Often, a living will is executed along with a durable power of attorney for health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.

What does intestacy mean?

If you die without even a will (intestate), California legislation has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70% of Americans currently use it.

What are beneficiary designations?

You may avoid probate on the transfer of some assets at your death through beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

What is a durable power of attorney and when do I need one?

These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, you and your family will be involved in a guardianship or conservatorship case. This is the court proceeding where a judge determines who should make these decisions for you under the court’s ongoing supervision

What is a revocable living trust?

This is an agreement between three parties: the trust-makers, the trustees (or trust managers), and the trust beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage the assets transferred to the trust, and have full use and enjoyment of the trust assets as beneficiaries. Further, “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or pass away. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trust maker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The revocable living trust may allow them to accomplish all this outside of any court proceeding.

Who should have a revocable living trust?

Whether you are young or old, rich or poor, married or single, if you owned titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all your assets together under one plan.

Get all your elder law and estate planning questions answered by our skilled attorneys in Fullerton. Call (714) 400-2373 now.

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    Marty Burbank

    Attorney

    Marty Burbank wants to live in a world where children are healthy and safe, where seniors live without fear or pain, and where veterans are cared for and respected. Marty is a featured expert in estate planning and elder law by Forbes and was recognized by the Orange County Register as one of the 100 most influential people in Orange County. He frequently speaks about seniors, our military veterans, their benefits, and the legal issues related to their care and quality of life. Marty has ...
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    Erlinda Vasquez

    Attorney

    Erlinda Vasquez received her bachelor’s degree in economics and political science from Loyola Marymount University. In college, Erlinda was involved in many extracurricular activities, including the Harvard Latino Leadership Initiative (LLI). As an LLI Scholar, Erlinda partnered with Harvard Kennedy School to create a community service project in Los Angeles. She later received her juris doctor from Loyola Law School where she discovered her passion for elder law . During her first year of law ...
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    Bryce Letterman

    Attorney

    For more than 25 years, Attorney Bryce Letterman has provided dedicated representation to clients in a wide variety of legal matters. Mr. Letterman assists clients primarily with estate planning and probate . He also has experience in several other areas, including business and civil litigation. His decades of experience in estate planning have ranged from simple wills and powers of attorney through complex planning including Medi-Cal , asset protection , and strategies to maximize the after-tax ...
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    Tessa Gardner

    Attorney

    Tessa Gardner received her bachelor’s degree in international business from Pepperdine University. While studying at Pepperdine, Tessa played lacrosse and developed her philanthropic purpose as a member of Alpha Phi. Tessa later went on to get her juris doctor from the University of Denver Sturm College of Law. During her time at law school, Tessa interned for the District Attorney's office in the Family Violence and Cold Case units where her passion for seniors' rights developed. Tessa then ...
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    Michael Lawlor

    Attorney

    Michael has practiced estate planning and trust litigation in California since 1981 except for the few years he took off to sail around the world with his wife on their boat Traveler. He attended USC for his undergraduate studies and earned his J.D. from Western State School of Law.
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