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Newark Family And Estate Law Blog

Your estate plan is the key to making sure that your loved ones know what to do with your belongings when you pass away. There are many facets to these plans that you have to think about when you are creating the plan for the first time. We know this might seem like a huge undertaking, but we are here to help you along the way.

The cornerstone of the estate plan is the will. This document distributes your assets that aren’t covered under other provisions. This means that if you set up trusts, the assets held in those won’t be included in the will. Trusts are useful because they can help you address specific situations, such as providing support to someone who has special needs and receives needs-based assistance.

You also don’t need to include anything that has a payable on death designation. Bank accounts, investment accounts and life insurance policies all have these designations, which enable the transfer of the asset to the named individual when you pass away.

Your estate plan also gives instructions about what you want to happen if you are incapacitated. Your living will and powers of attorney designations enable you to state what type of medical care you want to have or to decline, as well as naming a person who can make medical or financial decisions for you.

We know that you probably have a good idea about what you want to happen. We can work with you to ensure that your wishes are conveyed in the appropriate manner. This can give you peace of mind since you will know that you have everything laid out for your loved ones.

If you are the administrator of a friend or relative’s estate, you will need to familiarize yourself with the probate process. If the decedent had a trust in place at the time of their death, you may be able to sidestep the probate process. Otherwise, you will have to deal with the California probate courts to settle their affairs.

Probate deals with transferring the decedent’s property to their designated beneficiaries and heirs. You will need to handle the final affairs of the decedent and pay off any valid outstanding debts. Should there be a will challenge involved, the courts will determine whether the decedent’s will was indeed valid.

If there is a will, you will be appointed the executor. Cases where the decedent died intestate (with no will) are presided over by an administrator whom the court appoints as personal representative. You will review and list all assets, pay off debts and the decedent’s final expenses.

Whatever remains of the estate will then be distributed to the heirs at the end of the probate process, which typically takes months but could possibly take more than a year.

Many executors and estate administrators retain an attorney to administer the estate and handle any probate matters. This can be especially helpful if you are also an heir and want to avoid the appearance of impropriety or allegations of misappropriation by the other beneficiaries.

Depending on the size of the estate left by the decedent, probate can either be fairly simple or a highly complex endeavor. If you begin to feel that you are indeed in over your head at any point, it is advisable that you seek the counsel of a Newark estate administration and probate attorney.

When a couple parts ways, they must divide their property and debts. However, each state has its own guidelines on how a couple should do this. California is a community property state, which means that community property will most likely be divided equally.

Most of the property you and your spouse acquired throughout your marriage is considered community property because when you got married, you and your spouse became one legal community. However, you or your spouse probably also have separate property that is not subject to division in divorce.

How can I tell what is community property and what is separate property?

If you or your spouse acquired an asset or a debt during your marriage, it is most likely community property. Community property also includes money earned during your marriage and anything purchased with those earnings. However, gifts given to only one spouse and inheritances do not count as community property, even if they were acquired during the marriage.

In addition to gifts and inheritances, separate property includes any asset or debt that someone acquired before marriage. Also, any money earned from separate property is also separate property, and any items that were purchased with that money are also separate property.

What is comingling?

Some types of property are especially difficult to classify as either community or separate property. This can be because a property is both community and separate property at the same time, a situation called comingling.

Comingling can occur when an asset, which someone acquired before marriage, is sold and the proceeds are put toward a community asset. It can also occur when community funds are used to add value to the separate asset.

This may occur if one person owns a house before marriage, but then sells that house after marriage and puts the proceeds toward a down payment on a different house. Because both spouses probably contribute to mortgage payments, the separate property was mixed with community property.

Comingling can also occur in retirement benefits if they were earned while one spouse worked the same job before and after marriage. Comingling of any asset can make that assets more difficult to divide.

If you think divorce may be in your future, it can be helpful to prepare for your divorce by listing all of your assets and debts. Then, you can try to classify each, noting whether you believe it should be considered community property, separate property or comingled property. With a good understanding of the property you have and the classifications for that property, you may be able to work more efficiently in negotiations or in court.