Three Things to Know About Creating a Living Trust

Posted July 27, 2016 in Estate Planning, Probate by Michael Lonich.

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July 27, 2016
Three Things to Know About Creating a Living Trust
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First, one of the biggest advantages of creating a living trust is avoiding probate court.  Administering a will or trust through probate court takes time and money.  A living trust is a great estate planning vehicle because it can keep the entire administration process court-free.  When the settlor of the trust passes away, the terms of the trust dictate how the estate should be administered. In turn, probate court is avoided.

Second, make sure that the successor trustee is someone who is capable of administering the trust.  Often times, the oldest child is chosen to be the successor trustee.  However, the oldest child is not always the right choice.  A successful administration requires a trustee who is organized, diligent, and capable of administering the trust.  It is also beneficial to have someone with an understanding of accounting.  If your oldest child does not have any of these characteristics, consider appointing another child, relative, or friend.  If no one you know is capable of administering the estate, you may have to hire a third party. There are a number of trust companies and banks that administer trusts.  The biggest concern about hiring a third party is the administration fees, which can be substantial.  If your estate can handle the fees, a third party may be the right choice for you.  Lastly, a trust will never fail for lack of a trustee.  If the elected trustee refuses, another one will be appointed.

Finally, creating a trust avoids California’s intestacy laws.  A state’s intestacy laws provide the default estate plan for those who die without a will.  In California, the beneficiary of a decedent’s estate depends on whether the property was community property or separate property.  Assuming that decedent was married and had community property, the surviving spouse’s intestate share is the decedent’s one-half share of the community property.  On the other hand, if the decedent’s property was separate property, the intestate share of the surviving spouse depends on how many children the decedent had, if any.  While it is important to know a state’s intestacy laws, they should be avoided at all cost.  Thus, creating a trust is a way to avoid intestate succession and have your estate administered the way you want it.

If you are interested in creating a living trust or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich & Patton for further information.  The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, and we are happy to offer you a free consultation.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Sources:

California Probate Codes § 6400-6414.

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Alternative Custody Schedules: Bird’s Nest Custody

Posted July 7, 2016 in Family Law by Michael Lonich.

Divorce is always difficult—especially when children are involved.  Consequently, there will never be a “one size fits all” approach to child custody.  Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule.  Enter: bird’s nest custody.  Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences.  More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another.  In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches.  Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive.  Instead of maintaining two homes, a family must maintain three homes.  Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences.  Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement.  Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents.  First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split.  Second, parents may have trouble moving on if they maintain such strong ties to their marital home.  Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful.  Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason!  The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family.  Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.”  Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich & Patton—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Source:  Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

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