California Estate Planning Law Practice focused on Trusts, Probate, Asset Protection, and Will Contests

The Attorney-Client relationship is one of the most important business relationships that you will develop throughout your life. Our clients trust that their communications with our firm are confidential and protected. We don't judge our clients, we protect them. Don't trust your legal matter to "legal software" or legal websites that provide "self-help at your specific direction." We are California estate planning attorneys with a proven track record and the legal training to understand and solve your most difficult legal challenges.

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Based in the San Jose area, our estate planning attorneys can help you protect the future of your loved ones and ensure that your wishes are respected after your death or disability. We also can advise and represent you in matters related to trust administration and trust litigation, as well as business formation and litigation.

If you die without a will or trust in California, the laws of intestacy will determine to whom and how your property will be distributed. The first in line to inherit will be your spouse and children, and if there is no spouse or child, your grandchildren or parents will inherit. Estate planning allows you to have greater control over your assets and direct their distribution as you see fit. You may use a will to name an executor, leave your property to particular individuals or organizations, and name someone to take care of your kids and manage any property that you leave them. In order to finalize your will, you will need to sign the will in front of two independent witnesses, who also must sign it.

In order to avoid probate, a time consuming, expensive and public court proceeding, you may create a living trust, which is an arrangement whereby a trustee holds legal title to assets for the benefit of beneficiaries (usually your spouse or children). An estate worth $1 million dollars in California would cost $46,000 in fees to executives, attorneys and probate court. The person who makes the trust is known as the settlor. You may serve as the trustee (manager) of your living trust and keep control of the assets that are held in trust. You may name someone to succeed you upon your death (successor trustee) or have the assets distributed to beneficiaries upon your death.

Estate planning should also include creating a durable power of attorney. If you sign a durable power of attorney, you may designate a trusted friend (or agent) to handle your affairs in case of your disability or incapacitation. The durable power of attorney will allow your attorney in fact to pay your bills and taxes, handle your legal affairs and conduct other affairs on your behalf. You also need a similar document for health care decisions called an Advanced Health Care Directive. Our San Jose estate planning lawyers are familiar with crafting these instruments.

When one or both settlors of a trust die, the terms of the trust must be administered (or followed exactly). It is almost always helpful for a trustee to work with an attorney to make sure that the trust is administered properly and that the assets are sufficiently protected. The successor trustee has personal liability if he/she fails to follow the terms of the trust and probate exactly. The start of trust administration involves providing a particular probate code notice to the beneficiaries of the trust within 60 days of the settlor's death, after which the recipients have 120 days to file a trust contest. The notice should include the settlor's identity, the date on which the trust was executed, the contact information for the trustees, the address of the principal place of trust administration in case the recipient wants to file a trust contest, and a notification that the recipient has a right to get a true and complete copy of the trust terms. However, most attorneys typically just attach a copy of the trust to the formal notice to expedite the process.

Sometimes disputes arise regarding how a trust is administered. These may include claims that the settlor was not competent to make the trust, that undue influence was used on the settlor, and other claims of fraud, duress or mistake. A beneficiary may have problems with how the trust is being administered by a trustee. A petition to challenge the terms of a trust must be filed within 120 days from the time that the notice to file a case is received. More time is available if no notice was provided.

Among the duties owed by a trustee is the duty to avoid self-dealing, such as stealing from the trust. If a trustee is engaged in activities that help them and harm the beneficiary, this is a breach of fiduciary duty. The beneficiaries may sue the trustee for breach of fiduciary duty in order to recover damages. Trustees that engage in self-dealing may be removed from their position by bringing a petition to probate court.

Trustees have many duties and obligations to beneficiaries when administering a trust. They owe a duty of fiduciary care, the highest standard of care, to the beneficiaries. They must place the beneficiaries' interests above their own. Trustees must avoid conflict of interest and have a duty of loyalty to the beneficiaries. Trustees have the following trustee duties:

If the trustee breaches any of these duties a judge may choose to remove the trustee from office and appoint a successor. You should only choose a trustee that will precisely follow the terms you set forth in your “family rule book” your living trust.

When you are trying to protect your legacy, it may be crucial to consult a San Jose estate planning attorney. If you are looking for an experienced litigation attorney to fight for your objectives during a dispute, meanwhile, the Sowards Law Firm may be able to help. We represent clients in Campbell, Mountain View, Palo Alto, Santa Clara, Berkeley, Oakland, Concord, Walnut Creek, San Rafael, Salinas, San Mateo, Santa Cruz, and San Francisco, among other cities in Silicon Valley and elsewhere in the Bay Area. Call us at (408) 371-6000 or use our online form to set up an appointment.

We currently make home calls in Santa Cruz and Monterey County for a minimal fee.