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Wills & Trusts

Monday, December 17, 2018

Estate Planning with a Troublemaker Child


How can I prevent a difficult child from interfering with my estate plans?

There’s a phrase used to describe parents who hover, micro-manage, and otherwise manipulate or control their children: helicopter parenting. California estate planning attorneys also encounter parents who seek to exert control of their children even after their death.

Is it possible to control your estate from the grave?

There are several reasons for trying to control things after you are gone—rather than leaving your assets to your children outright. Some people want to protect adult children who are “spendthrifts” and would otherwise likely blow their inheritance or lose it to creditors or in a divorce. Others have special needs children (or grandchildren) who need their inheritance to be structured in a way that does not jeopardize their eligibility for government disability benefits.
Read more . . .


Friday, August 18, 2017

Choosing A Trustee - What To Look For


Designating a trustee can be an agonizingly difficult decision. A trustee may have to serve for many years, even for generations. You want to make sure the trustee will be able to perform the multiple tasks and have staying power to complete the job. That is why it is vital to know, when choosing a trustee, what to look for. After reading this article, consider talking with a


Read more . . .


Monday, July 17, 2017

How Can I Prevent Someone from Contesting My Will?


It is a sad but true fact. The body is not yet in the ground, and the relatives are squabbling over the inheritance. Did dear old Aunt Edna leave a will? Was anyone disinherited and did anyone get a windfall? Did she stick it to all of you and leave everything to charity?

There are ways to avoid these ugly disputes among family and friends. If you do not want your loved ones turning on each other after you are gone, you may be asking, “How can I prevent someone from contesting my will?” Talking to an


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Thursday, May 11, 2017

How to Fund a Living Trust


Today, estate planning is about more than having a will and getting your affairs in order before you die. Instead, it's a matter of planning for life, and many individuals are creating living trusts in order to protect their assets, plan for incapacity, provide for their loved ones, as well as to avoid probate. A revocable living trust, for example, is an estate planning tool that distributes assets to your beneficiaries after you pass away, but allows you to continue managing your affairs during your lifetime.

In any event, once a trust is in place, the trustee must transfer property into the trust. This is known as funding the trust.
Read more . . .


Friday, February 17, 2017

What Types Of Special Need Trusts Are Available To Me?


Special needs trusts provide a way for you to safely transfer funds to a loved one without threatening his or her ability to receive government benefits such as Social Security and Medicaid. These types of trusts can be set up so that it operates while you are alive or begins once you have passed. There are a lot of factors to consider during the special needs planning process, so it helps to have an experienced special needs planning lawyer at your side to avoid problems.


Read more . . .


Tuesday, June 28, 2016

Dying Without a Will or Trust Can Cost You Money, Privacy, and Control


What happens if I die without a will or trust in California?

“Dearly beloved, we are gathered here today to get through this thing called life.”-Prince

In late April, the music world was shocked by the loss of the artist (formerly known as) Prince, who died suddenly at the young age of 57. The above quote is a lyric from one of his most popular songs, “Let’s Go Crazy”.

And speaking of crazy…one thing most people do as they “get through this thing called life” is prepare a will or trust. Prince-- a man worth an untold fortune, with no spouse, parents, grandparents, or known children—apparently died without either.


Read more . . .


Thursday, June 16, 2016

The Importance of Obtaining a Power of Attorney Before You Need One


What are the risks of waiting too long to appoint a trusted friend or relative to make financial or health care decisions in an emergency?

No one likes to think very hard about a time when he or she may be unable to function independently. But few estate planning topics are as important. Even when it is clear who should manage an elderly person's health care and finances, the lack of legal preparation can lead to unhappy surprises.

The Advantages a Power of Attorney—And the Risks of the Wrong Choice

In the event of illness or incapacity, a power of attorney should be held by someone who knows and cares about the needs and wishes of the patient.
Read more . . .


Saturday, October 31, 2015

Avoiding Prepaid Funeral Scams When Medicaid Planning

I recently received correspondence from a company claiming to help with Medicaid eligibility by offering prepaid funeral services. Is this legit?

When it comes to Medicaid planning, the overall goal is to reduce personal assets either by transferring these assets to a trust, gifting to family, or making exempt purchases. Exempt purchases and transactions are those that do not trigger a penalty even during the 5-year look-back period, and include any of the following:

  • Full or partial payment on any legitimate debt (e.g. mortgage, auto loan, etc.)
  • Purchases of an exempt asset (e.g. an exempt home)
  • Preplanned funeral
  • Preplanned burial
  • Annuities
  • Caregiver costs
  • Maintenance of a non-countable asset (e.g. home improvements to an exempt home)

Of these “spend down” options, one of the most notorious areas for scams involves the concept of a prepaid funeral and/or burial service. While there are many trustworthy and reliable outfits available to help planners prearrange these events, planners are cautioned against working with any companies that seem questionable or aggressive. It is vital to work with a prepaid funeral service provider with a strong reputation in the community. If possible, it is best to obtain a personal referral.

Sound Alternatives

Too often, prepaid funeral plans require monthly payments that, in the end, amount to more than the actual cost of the average funeral. In addition, these plans may include costly and wasteful “service” or “account maintenance” fees that create an unnecessary burden on the decedent’s estate when it comes time to prepare for the memorial services.

As an alternative, planners may be able to direct funds into an interest-bearing account for purposes of pre-paying funeral costs and expenses. By designating a beneficiary as payable-on-death, family members can rest assured the process is handled with ease, and preplanners can rest easy, knowing the process is being taken care of in a cost-effective manner.


Sunday, September 20, 2015

Including a Special Needs Trust Within a Revocable Living Trust

How Is It Best to Protect a Beneficiary Who Has Special Needs?

There are a number of reasons why a family may wish to set up a special needs trust as a sub-component of their estate plan. As the name suggests, special needs trusts are designed to offer financial protection for a beneficiary who suffers from a physical and/or mental disability and – in most cases – is receiving supplemental income from the state or federal government (e.g., Social Security and/or Medicaid).

If a testator were to leave a lump sum of money outright to an individual with special needs, this dramatic increase in assets could lead to the unintended result of the beneficiary losing his or her monthly benefits – or at least experiencing a significant decrease in them. In such a case, the testator's intention to offer assistance to the beneficiary would be thwarted, causing the beneficiary to lose significant funding. To avoid this result, a special needs trust can help funnel money and assets to an appropriate place, thereby providing financial security to the beneficiary while still helping the beneficiary maintain the supplemental income they are entitled to.

When setting up a special needs trust, it is vital to select a trustee to help the beneficiary manage the trust assets in accordance with the established guidelines set forth by entities like the Social Security Administration or Medicaid. Generally, the funds derived from a special needs trust must be used for purposes of maintaining the beneficiary’s health and wellness, and are not to be used for purposes already covered by the recipient’s monthly income. Choosing a trustee who is familiar with the regulations – or is willing to seek guidance from an experienced professional – is the best way to ensure that the bequest is honored and the beneficiary is protected.

Likewise, the trustee must ensure the beneficiary does not have unfettered access to the funds, as this could trigger a reduction or elimination of government benefits.

If you are considering a bequest to a special needs family member and would like to ensure that the special needs trust is handled with careful consideration, please contact the Law Offices of Berge & Berge. Located in San Jose, California, and serving clients throughout the South Bay area, we can be reached at: 408-985-9918.


Thursday, May 28, 2015

The Benefits of Updating Your Estate Plan Periodically

Do I Need to Update My Estate Plan?

People can be reluctant to undertake the estate planning process because they associate it with planning for events they do not want to think about (like illness or death). Not planning for these events, however, will not prevent them from happening. Once these documents are completed, they need to be updated periodically; after all, people change over time, as does their health, financial situation, wants and plans for the future. These are not documents that should be packed away and forgotten.

Plan Periodic Reviews

At the least, you should review your planning documents (wills, trusts, powers of attorney, living wills) every five years. What may have been perfectly sensible five years ago may no longer be appropriate. If not, make changes. Many experts even recommend an annual review which you should schedule around your birthday so it’s not easily forgotten. 

Update with Major Changes 

These documents should be reviewed and adjusted when a major life event happens. This could be a divorce, re-marriage, death of a spouse or child, birth of a grandchild or any drastic change (good or bad) in your finances.

Once your planning documents are completed to your satisfaction, make sure they are organized and do not treat them like they are top secret. Consider taking the following steps: 

• Health care directives should be sent to your physician, become a medical order and be part of your chart at your local hospital. 

• If trusts are created or changed, your real estate title and financial accounts may also need to be changed.

• Store your health care directives electronically where designated family members can easily access them in the event of an emergency.

• Discuss your wishes and details of your estate plan with your loved ones. 

According to the Dubuque Telegraph Herald, a recent survey of a thousand adults by the website Caring.com found,

• 55% said their parents have completed some kind of planning document.

• Nearly a quarter of people with elderly parents don’t know where their parents’ estate documents are kept, and 

• 44% didn't know the contents of the documents.

If you have any questions or concerns about estate planning or want to update your estate plan, the San Jose and Santa Clara County California estate planning and elder law attorneys at Berge & Berge can help. Call the firm at (408)985-9918.


Tuesday, May 19, 2015

Joint Tenancy in Estate Planning: When (and How) to Avoid an Unintended Override

I am considering adding my daughter to my checking and savings accounts. Is this a good idea? 


Joint tenancy is a legal term referring to the situation in which two or more individuals share an undivided ownership interest in an asset or piece of property. The situation is extremely common between spouses or domestic partners, as it creates a seamless transition of property to the other upon the death of the first. However, joint tenancy is not always as convenient as it seems, and it can actually lead to the override of a well-intentioned, carefully-considered estate plan. If you are considering joint tenancy for the sake of convenience, we encourage you to read on before taking this step – there may be more to it than you realize. 

Joint ownership of financial accounts

For many, the thought of managing daily and monthly personal finances proves exceptionally overwhelming, prompting the decision to add a significant other, child or close friend to an account. By virtue of being added to the account, this individual gains all the administrative rights of the original owner, including the ability to write checks, make deposits, and initiate withdrawals. This person will also gain outright ownership of the account upon the death or incapacity of the original owner, despite the language of that owner’s will or living trust. In other words, joint tenancy over checking and savings accounts – which can grow to a considerable size with income from one’s pension and retirement accounts – will override one’s intentions in an estate plan, and there is little that can be done to undo this arrangement. 

For anyone struggling with upkeep of personal finances, one alternative to joint tenancy is a simple durable power of attorney for finances. This document will allow a trusted friend or relative to make transactions on behalf of the account holder without actually undoing his or her predetermined estate plan. 

If you have additional questions about the effects of joint tenancy on financial assets or real property, please do not hesitate to contact the estate planning attorneys at the Law Offices of Berge & Berge, LLP today by dialing (408)985-9918. 


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