Practice Areas

ESTATE PLANNING AND GENERAL BUSINESS MATTERS

Jim Gifford has been practicing law in the areas of estate planning and general business matters for several decades. His practice is concentrated on estate planning (wills, trusts, powers of attorney and related matters) and estate administration (trust estates and probate estates), including:

• Wills
• Trusts (design and drafting)
  • Living Trusts
  • Minors Trusts
  • Charitable Trusts
  • Life Insurance Trusts
• Durable Powers of Attorney (for financial matters)
• Advance Health Care Directives (includes provisions formerly in the Durable Power of Attorney for Health Care Decisions)
• Estate Administration, including
  • Probate Estates
  • Decedents’ Trust Estates
• Conservatorships

ESTATE PLANNING

WHY SHOULD I HAVE AN ESTATE PLAN?

Overview. Most of us know whom we wish to benefit from our estate after our death, but we do not know how to accomplish that objective efficiently. The purpose of estate planning is to arrange your affairs so that your wishes and desires concerning your estate after your death will be accomplished expeditiously, at a minimum administrative cost, and paying no more taxes than necessary. Planning your estate is one of the most important elements of planning for your family.

TYPICAL ESTATE PLAN

Four Primary Documents. The typical estate plan includes at least four primary documents: (1) Family Living Trust, (2) Pour-over will, (3) Durable Power of Attorney (for financial matters), (4) Advance Health Care Directive (covers matters formerly in the Durable Power of Attorney for Health Care Decisions), and (5) HIPAA and CCMIA Releases (releases of medical information).

It also may include deed(s) (to transfer real estate into the trust) and beneficiary designations (for retirement plans and life insurance).

Family Living Trust (Family Trust or Living Trust). The typical family trust is established by husband and wife (settlors), is revocable (can be revoked or amended at any time), devotes the entire estate to the support of the surviving spouse after the death of the first spouse to die, after the death of the survivor may distribute a portion of the estate to one or more charities before allocating the balance among the children; the share of any child under a specified age will be held in trust for that child until a specified age is attained, with portions of the principal to be distributed in increments before that specified age for full distribution.

Pour-Over Will. A proper plan always includes a pour-over will for both husband and wife, which provides that any assets which have not been transferred to the family trust are to be added to the family trust. This is to ensure that assets do not inadvertently pass to others than those designated in the family trust. Normally, this will should not be needed, but is included for additional assurance that all assets will be administered in accordance with the trust.

Durable Power of Attorney (for financial matters). This is a document by which you give someone else the right to sign your name in matters involving financial affairs. Unlike an ordinary
power of attorney it becomes effective (or continues to be effective) upon your incapacity.

Advance Health Care Directive. The Advance Health Care Directive is a document by which you can give instructions concerning your health care and can appoint someone to make health care decisions for you if you are incapacitated and unable to make those decisions for yourself. It has replaced the former Durable Power of Attorney for Health Care.

WILL PROBATE BE REQUIRED?

What is Probate? Probate is a court proceeding by which all of your assets are identified and transferred to the name of the person designated in your will as executor (or to a relative, as administrator of your estate); in effect, the executor of your will or administrator of your estate (whether the person is an executor or administrators he or she is referred to as personal representative) is granted the authority by the Probate Court to sign documents in your behalf to accomplish the payment of your debts and the ultimate distribution of your estate to your designated beneficiaries.

Probate can be a costly and time-consuming process that your beneficiaries would rather avoid. It also is a public matter, the probate files being open to the public.

The Judicial Council of the State of California has adopted a form setting out the Duties and Liabilities of Personal Representative [executor of the will or administrator of the estate].Click here to see the form.

Probate Required

No Trust, No Will. If you do not have a living trust and do not have a will, your estate will be subject to administration in the probate court and will be distributed to those persons designated by state law to be your heirs.
 
Will, No Trust. If you have only a will but not a living trust, your estate will be administered in the probate court and will be distributed in accordance with the provisionsof your will.

Probate Not Required

Living Trust. If you have a living trust, your estate will be administered by your designated successor trustee and will be distributed in accordance with the provisions of your living trust, without a probate. The administration is done privately, faster and with less expense than if probated.

A Trust is Not Only for the Wealthy. One common misconception about trusts is that they are only for the extremely wealthy. This is simply not true. People of all income levels establish trusts rather than wills to designate the persons they wish to receive the assets of their estate following death.

Guardianship, Beneficiary Under Age Eighteen. Unless the will or living trust provides otherwise, a court-supervised guardianship will have to be established and administered for any heir or beneficiary under the age of eighteen (18) years; the guardianship will terminate at age eighteen (18) at which time the assets will be distributed to that person.

Trust for Younger Person to Continue Beyond Age of Majority. As mentioned above, the family trust typically will provide that the share of any person (usually a child of the settlors of the trust) under a specified age (perhaps age 30) will be held in trust for that person until a that age is attained, providing for support and education in the meantime, with portions of the principal to be distributed in increments before that age (perhaps 1/3 at age 26, ½ of the balance at age 28, and all at age 30).

Contact Jim Gifford for Assistance. Jim Gifford is an experienced estate planning attorney who can assist you in planning your estate to best achieve your objectives. Jim serves as a trusted advisor to clients in need of sound estate planning advice. He counsels his clients about whether to provide for disposition of the estate by will or by a trust, and tailors his approach based on the specific circumstances of each client.

Jim’s clients receive personal, one-on-one attention from an attorney with years of experience. His number one priority is to educate his clients and assist them in preparing the estate plan that best suits their circumstances. Contact California estate planning attorney Jim Gifford today for more information and to begin planning for your family after your death.

James M. Gifford Law Corp.

15425 Los Gatos Blvd., Suite 120
Los Gatos, California 95032
Telephone: (408) 358-9698
Fax: (408) 358-9649
Email