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Holland, Donnelly  & Mishler

814 West Foothill Blvd. Monrovia, CA 91016

Phone (626) 357-3223

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TimMishler@hdmlawyers.com


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Trusts, Probate & Estate Planning Family Law

Disclaimer:

The information contained herein is provided for informational purposes only and is not intended to serve as legal advice. You should not act or fail to act based on the information on this website. Prior results do not guarantee a similar outcome. Attorneys at Holland, Donnelly & Mishler are licensed to practice law in the state of California.


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Wills and Trusts

Choosing a Trustee

For a living trust, it is common for people to name themselves as the trustee. In this way, the trustor is able to manage the assets while they can. In this situation, it is necessary to identify a successor trustee to manage the trust after one’s death. A trustee and the successor trustee have many responsibilities related to managing the trust. Before choosing a trustee, the trustor should carefully consider that individual’s character before making a decision. A trustee is legally responsible for handling the assets that are held inside the trust. The trustee also files the taxes and distributes the assets following the trust’s directives.

Ultimately, the trustee should be a trustworthy individual. The trustor must have confidence that the trustee will take the fiduciary duties responsibly, use good judgment, and act in the beneficiary’s best interests. Many times, a trustor will choose a family member or close friend as trustee. If a trustor selects a family member, it is important to consider the impartiality of this choice. Will this person offer equitable treatment to all beneficiaries, even stepchildren or a spouse’s children? In other circumstances, a trustor may identify a legal professional or a corporation for the role of trustee.

Acquiring a Power of Attorney

Caring for loved ones who are unable to care for themselves often means an individual takes on the many financial and legal responsibilities of that other person. These activities can include managing their daily activities, handling household responsibilities, and ensuring medical needs are met. To gain the legal ability to act for another person, an individual must obtain a power of attorney. This document allows an individual, the agent or attorney-in-fact, to make many types of decisions on behalf of another person, the principal. It is imperative the individual completely trusts the agent.

There are numerous reasons a person would appoint a power of attorney. It could be that a person or family member recognizes their declining ability to make reasonable decisions. A power of attorney is obtained proactively before the individual becomes incapacitated. It is often used when individuals require additional assistance to pay bills and sign documents. There is also a specific power of attorney designed to address healthcare needs and decisions. Without a power of attorney, there is no one to act on one’s behalf if needed for court or legal situations. A power of attorney allows family members to step in when needed to effectively manage financial matters for a loved one.

Determining Power of Attorney

When obtaining a power of attorney, it is important to choose the appropriate type of legal document which will best meet the needs of the situation. The following kinds of power of attorney focus on financial matters, and each has a unique focus.

Limited Power of Attorney

A limited power of attorney allows another person, on a limited basis, to complete a specific task. The limited power of attorney often begins and ends at certain times outlined in the document, giving the agent appropriate time to complete the specific task.

General Power of Attorney

This document gives certain rights to the agent to conduct and manage another’s financial matters. The general power of attorney concludes upon the principal’s death, if the principal becomes incapacitated, or whenever the principal rescinds it while not being incapacitated.

Durable Power of Attorney

This legal document can be either limited in scope or general. It allows for an individual to appoint an agent to make all financial decisions for them and represent them in court. This remains in effect until the principal’s death or until it is rescinded by the principal who is not incapacitated. A durable power of attorney can contain language allowing it to continue while the principal is incapacitated.

Springing Power of Attorney

This document gives the agent the ability to make financial decisions for the agent, but it only becomes effective after the principal is incapacitated. These standards must be clearly defined within the document.

An experienced estate planning attorney can assist with determining which power of attorney can best meet the needs of individuals and families in California.

Estate Planning

Why Estate Planning is a Process

Rather than being just a one-time action, estate planning is more of an ongoing process. It should not be viewed as something to finish, set aside, and not think about again. If you regard estate planning as something to be maintained over your lifetime, this can create better results for you and your family. Different areas of life are affected by estate planning, and it is helpful to carefully consider these matters. A knowledgeable estate planning attorney will help you make sensible decisions.


When circumstances in life inevitably change to a greater or lesser degree, your estate planning documents may need a revision. It is recommended that you review your estate planning documents annually. Major changes can happen in just a year. Marriage and births can add new family members. Some may pass away. Property can be sold or acquired. It is important that properties are titled correctly so they are included in the trust. Reviewing these details will protect your interests now as well as ensure your wishes are upheld after your death and the settlement of your estate. Popular legal tools used in estate planning are wills, trusts, powers of attorney, advanced healthcare directives, and business succession plans.


When a Business Succession Plan is Needed

Someone who owns a business or corporation should consider what would happen in the event of their death. Even those who hold only a portion of ownership interest should consider a business succession plan. Such plans allow the company to continue operating seamlessly even when potentially disruptive events happen. This is because many questions have already been considered and resolved with appropriate methods.


When a business succession plan is created, you are able to control the details and allow for a smooth transition of power. This makes matters easier for all involved, protects the business now, and preserves the financial interests of future generations. When a plan is not in place, legal disputes leading to costly litigation could threaten the viability of the company. Having a business succession plan ready to go will reduce the friction that could occur between family members, management, and employees. This reduces the possibility of litigation. When the business succession plan is in place, it can set at ease the minds of those involved. In time, they can learn the skills that will be needed for their future roles in the business. If the plan involves selling the business, the process will be more efficient due to the necessary documents being readily available.


Using Power of Attorney in Your Estate Plan

If a loved one is incapacitated and no longer able to manage their financial and legal responsibilities, who will handle things? Power of attorney (POA) gives the designated agent (also called the attorney-in-fact) legal authority to care for household responsibilities and daily activities. For example, the agent would handle court issues on behalf of the principle (the person authorizing the other to act). The agent would also make sure the principal’s healthcare and medical needs are met. Since the agent’s role is so important in the principal’s life, it is vital that the agent is responsible and trustworthy.


Often a power of attorney is obtained when the family begins to recognize that their loved one is declining in abilities. A POA should be completed before the principal is incapacitated. It may be that power of attorney is initially established when the principal is unable to pay bills and sign documents on their own. If someone only needs assistance with medical matters, a specific type of POA is used. If an individual loses mental capacity and has not designated an agent with power of attorney, it may cost valuable time when a business or family is facing urgent decisions. Unnecessary anxiety would likely result to one’s family if medical decisions are necessary and no power of attorney has been appointed.