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Do I Qualify For Summary Dissolution

dissolution

Dissolution is the official term for divorce in California.

There are two ways you can obtain a dissolution in California: standard, which is the most common form of divorce, and summary, which is a shortened version of the divorce process.

Not everyone can use summary dissolution to end their marriage as there are very specific requirements that must be met for the court to approve your divorce.

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Who Qualifies for a Summary Dissolution?

There are strict eligibility guidelines for a California summary dissolution and all of them must be met to proceed. In addition to those listed above, it is required that:

  • At least one of you has lived in California for at least 6 months, and in your county for at least 3 months before filing the petition.
  • Both of you must agree to summary dissolution and the grounds of irreconcilable differences.
  • Neither of you may own real estate or hold a lease with an option to purchase.
  • Neither of you has more than $40,000 in separate, or non-community, property.
  • Neither of you has incurred more than $6,000 in debt, excluding car loans, since the date of marriage.

Both of you must also read and sign a summary dissolution booklet that is provided by the state. The booklet explains the entire process and contains helpful worksheets for dividing assets.

How to Obtain a Summary Dissolution

There is less paperwork required for a summary dissolution than there is for a regular one, but you must file with the superior court clerk a Joint Petition for Summary Dissolution that includes a property settlement agreement.

A Judgment of Dissolution and Notice of Entry of Judgment must also be prepared. Six months after filing, your divorce will be final.

You do not have to appear in court and afterwards you are free to remarry. At any time during those six months either you or your spouse can stop the summary dissolution process.

If you are looking for a fast resolution to your marriage, summary dissolutions can be the right option for you as long as you meet the necessary requirements.

To learn more about whether you may qualify, or for help in starting the process, talk to a qualified California family law attorney.

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What Qualifies as an Estate Planning Amendment and What Doesn’t

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The estate planning process is a continuous and ongoing process as one progresses in life. Often times, significant life events prompt many to amend or even restate their estate planning documents.

These events include divorce, illness, disability, death of a spouse, having additional children, children becoming adults, adding or removing beneficiaries, and even disputes that may arise between family and friends. 

Updating one’s estate planning documents may involve changes to one’s trust, will, durable power of attorney, or advance healthcare directive. In order for the changes to be effective such updates must be done correctly. Incorrect updates may result in frustration, disappointment, and potential unnecessary lawsuits. 

What is an Estate Planning Amendment?

An estate planning amendment is made when one revises a term or terms of an estate planning document. A trust amendment allows one to keep their documents current, while carefully updating their documents to reflect their current life circumstances and most up to date wishes.

Overall, an amendment serves as a sort of patch to your estate planning documents. In order to understand the amendments made, one must read the original document and then understand how the updates or changes made in the amendment affect such original document. Both documents, the original and the amendment, must be kept so long as the original document remains in effect.

An amendment is appropriate when one has minimal or minor changes. For example, amendments can be made when updating a successor trustee, updating a beneficiaries’ information, or even simply rewording a certain provision to clear up ambiguity. Typically, if one wishes to minorly update a trust, an amendment will suffice. However, if one wishes to make more major updates or even update other estate planning documents such as a will, it may be beneficial to restate the entire document. 

How to Make an Amendment?

Granted an individual seeks to amend their estate planning documents, it is important to note one cannot simply cross out existing language and insert replacement language absent any signatures. Certain formal steps and procedures must be followed in order for amendments to be made correctly and effectively.

The amendment process begins with carefully reviewing the existing trust document and ensuring you have a clear understanding of the changes you want to make. It’s essential to know the specific sections or provisions that need to be amended. When it comes to a trust specifically, it can be amended or revoked in one of two ways. The trust itself may contain language or a provision that lays out how to change or revoke it. If that’s the case, you must adhere to those directives.

However, if no such language exists, you will have to draft an amendment document clearly outlining and stating the changes you want to make to the trust. The amendments should be specific and precise. Further, they should include any necessary legal language to ensure the amendments are legally binding. 

Overall, the process of making changes to estate planning documents can range from super simple to extremely complex. The difficulty of the necessary updates will help guide one as to whether amendments will suffice. 

What is Restatement and How is it Different from an Amendment?

Under certain circumstances, changes to estate planning documents may be so extensive the entire document is rewritten. This is commonly known as restatement. Meaning, restatement is appropriate when one seeks to make extensive changes to their estate planning documents. For example, restatement may be necessary when one wishes to change the way beneficiaries receive their inheritance, when one’s overall goals have changed, when multiple overlapping amendments exists, or when the document has numerous inadequacies that require corrections.

Essentially, restatement completely replaces all provisions of the original document. In choosing to do a restatement over an amendment, all prior documents become obsolete, and the new document becomes the governing document. Therefore, a restatement is a complete amendment to your estate planning document. With regard to a trust restatement specifically, the framework of the trust remains intact (the name of the trust, the original date of the trust, the original grantors of the trust), but the body is completely removed and rewritten to comport with the way one seeks to have their trust written now.

While restatement is typically used to make significant changes to an estate planning document, it can also be used to consolidate several amendments that have been made over time. Doing so helps simplify the process for a successor trustee down the road, as they will no longer have to follow and manage multiple amending documents. Another reason one may choose restatement over amendments includes updating documents to better comply with changes in state laws. 

Restatement and Removing a Beneficiary

One may specifically want to consider restatement as opposed to an amendment when they wish to remove a beneficiary. The following suggestion stems from the fact that when one passes away, all estate planning documents must be given to all beneficiaries. Therefore, if your trust is solely amended, all amendments, together with the original trust, must be available to all beneficiaries. 

For example, let’s say there has been a significant change in circumstance and you no longer wish to include your friend, Joe, in your trust as a beneficiary. If you solely remove Joe from your trust via amendment, when you die Joe will still receive a copy of the original trust, as this document does include Joe as a beneficiary. Moreover, Joe will also receive a copy of the amending document in which you removed him from your trust as well. However, if your trust is restated rather than amended, the restated trust supersedes the prior trust and any amendments made.

Therefore, Joe would not receive any of the trust documents as he is not included anywhere in the new restated trust. Overall, many will see this as beneficial because the restatement will prevent a full-on display of changes made over the years.

Fully Restating Versus Making an Amendment

Consulting with an experienced estate planning attorney can help you determine whether fully restating an estate planning document or making an amendment is most beneficial for your unique situation. Neither restatements nor amendments are necessarily better than the other. However, it is vital one hires an estate planning expert to help ensure details and legal nuances are taken care of in determining which route best suits your needs and goals. 

Factors for yourself and your attorney to consider in making the following determination may include:

  1. Analyzing how many aspects of the trust will be impacted;
  2. Looking at how many current amendments are already in effect;
  3. Determining whether serious time constraints exist; 
  4. Considering whether the update necessary raises a sensitive issue; and
  5. Conducting a cost/benefit analysis of amending versus restating.

Common Mistakes to Avoid

  • Procrastinating updating estate planning documents:

Life, finances, and relationships are constantly changing. It is essential your estate plan stays current to reflect those changes and consider the impact those changes have on your wishes. Procrastinating may lead to one passing away or becoming incapacitated prior to being able to carry out their estate planning desires. More importantly, procrastinating can result in overall loss to those you care about most.

  • Updating estate planning documents, but forgetting to update ancillary documents: 

Often times, individuals are most concerned about updating their wills and trusts without taking the time to update their advance healthcare directive or powers of attorney. It is just as vital these documents also be updated to ensure addresses, phone numbers, or even the agents themselves have the most up to date information listed throughout. Some common updates to the following documents include updating your health care agent or even potential backups and updating wishes relating to your health care – life support, pain relief, etc.

  • Too many amendments and the potential for ambiguity:

As stated, an amendment is like a patch. However, when one continuously patches up their trust specifically, it leaves room for serious vagueness and ambiguity. Having a multitude of amendments may become confusing and may even take hours to decipher what the grantor’s intent truly was. 

Therefore, it is important to consider the potential benefits of restatement when one has more than a few minor changes. Potential benefits may include ease of understanding, avoiding ambiguity, and decreasing the risk of document misplacement. While a restatement may seem more time consuming and costly, it may actually be more cost effective than amendments in the long run.

In Summary

Updating your estate planning documents is a vital aspect of the overall estate planning process. The following process deserves the same level of careful consideration involved in creating the original documents themselves. 

If you need help or assistance updating any estate planning document, the qualified staff here at Minella Law Group can assist you. For more information or to schedule a consultation call us at (619) 289-7948. We look forward to ensuring all your documents are effective and your wishes are reflected absent any ambiguity.   

 

 

 

The Basics of Estate Planning

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No matter what stage of life one is in, it is never too early or too late to reflect on your estate planning needs. Life is nothing short of unpredictable, things can change instantly, and when they do, it is vital you be prepared to take care of those closest to you.

Often times, people are skeptical or unwilling to begin the estate planning process because they do not want to think about death, they do not know where to begin, or they believe they do not have enough assets to make a will, trust, or other plan necessary. Despite these common roadblocks, estate planning is a crucial process for everyone. Estate planning ensures several things including the following:

  1. Ensuring your wishes are respected.
  2. Ensuring your assets are protected.
  3. Ensuring your loved ones are provided for once you are gone.
  4. Ensuring you are prepared for the unlikely event of your own incapacity due to illness or disability.
  5. Ensuring the avoidance of probate court.

While this is not a comprehensive list, one can already see estate planning goes far beyond whether one has an extensive list of high value assets to distribute upon death.

What are the Key Components of Estate Planning?

The estate planning process without competent counsel can be daunting. However, with the right counsel, one can navigate the process with ease and prepare the key components of an estate plan, including the following:

  1. Trust: A trust is a legal arrangement that allows the trustee to hold assets on behalf of the beneficiaries. Moreover, a trust can provide control over asset distribution. Overall, a trust is vital to avoid the costs and delays associated with probate.
    1. Parties Involved in a Trust:
      1. Trustor: The individual who funds the trust.
      2. Trustee: The individual who manages the trust property for the beneficiary(ies).
      3. Beneficiary(ies): The individual or individuals who benefit from the trust.
    2. The Most Common Type of Trust: The most common type of trust is the revocable living trust. People create the following while they are alive, in order to leave property at their death. A revocable living trust is extremely advantageous because it saves surviving family members the money, time, and effort necessary to go through probate. Probate remains unnecessary because property left through a revocable living trust need not go through probate prior to being transferred to the beneficiary(ies). Moreover, the living trust is revocable in that it may be changed or amended at any time absent the consent of the beneficiary(ies). Overall, a revocable living trust is an invaluable tool in that it offers flexibility and control during one’s lifetime, while also serving as a mechanism that allows for the smooth transfer of assets to your loved ones upon death. 
  2. Will: A will is a legal document outlining how one wishes their assets to be distributed after their death and only takes effect after one’s passing. Additionally, a will allows for individuals with minor children to name guardians for their minor children should they pass.
  3. Durable Power of Attorney (POA): A legal document that remains in effect even if the principal becomes incapacitated. The term “durable” specifically refers to the POA’s endurance lasting through the principal’s incapacity. A durable POA will typically cover one’s ability to designate an agent to act on their behalf with regards to financial affairs while they are still alive should they become incapacitated or unable to do so. For example, this document will allow the agent to assist in tasks such as paying bills, filing tax returns, and more.
  4. Advance Healthcare Directive: A legal document that allows one to designate an agent to make healthcare decisions for them should they become incapacitated or unable to do so. The following document also allows one to lay out their specific wishes for their agent to review and consider.

Beginning the Estate Planning Process

  1. Consult with an Estate Planning Attorney: To create an estate plan, it is advisable to consult with an experienced estate planning attorney. The attorney will guide you through the process, help you understand legal implications, and ensure the estate planning attorney documents are tailored to your needs and specific goals.
  2. Assess Your Assets: Generate a list of all your assets, including property, bank accounts, investments, and personal property. Reviewing one’s assets allows one to determine what should be included in the trust and how they should be distributed. 
  3. Identify Your Trustee: Often times, individuals remain unsure who they wish to act as the trustee of their living trust, and choosing a trustee can be a stressful experience. In choosing a trustee, one should keep in mind, a trustee’s overall responsibility is to carry out the trust’s directions. In order to carry out the trust’s directions though, the trustee must act as a fiduciary, manage the assets of the trust, understand the terms of the trust, potentially invest assets when necessary, administer the trust, and more. Therefore, it is vital the trustee be a trustworthy individual or entity, as the trustee will manage the assets according to your instructions and distribute them to the beneficiaries upon your passing.
  4. Identify Your Beneficiary(ies): It is important to specify who will receive the assets and any specific instructions regarding the distribution. Beneficiaries may include family members, friends, or even charitable organizations.
  5. Create Essential Documents: Work with your attorney to create all the following essential documents including not only the trust, but the will, durable power of attorney, and advance healthcare directive.
  6. Review and Update: The estate planning process is a continuous and ongoing process as one progresses in life. It is important to review all estate planning documents regularly to ensure they reflect your current wishes and circumstances. Major life events such as marriage, divorce, birth, or death may require revisions to your documents. Additionally, it is important to keep your estate planning documents up to date to maintain their effectiveness.

Commonly Asked Questions:

What is the difference between a will and a trust?

Often times, clients will ask what the difference between a will and a trust even is. While both share the common goal of facilitating a unified estate plan, there are some key notable differences.

See chart below:

Living Trust Will
Takes effect while you are alive Effective at death
No frozen assets upon death Assets frozen upon death
Skips probate court Goes through probate court
Privacy (not public record) No privacy (public record)
Provides asset protection for beneficiaries No asset protection
Assets belong to the trust, trust is funded Assets do not belong to the will, will is not funded and does not hold the assets
Does not designate a guardian for minor children Designates a guardian for minor children

 

Do I need an estate plan if I don’t have a lot of high value assets?

Regardless of whether you have a lot of high value assets, an estate plan is how one voices their wishes for the assets they do have. Regardless of asset value, not having a plan in place has the potential for chaos and dispute. With an estate plan in place, you have the power to control exactly how your property is disbursed. Additionally, as mentioned, estate planning offers several important benefits beyond just managing money and assets. For example, it provides for protecting your minor children by designating a guardian, it provides for healthcare decisions down the road, it allows the bypass of probate, and more. 

Why hire an estate planning attorney rather than using an online template service?

Too often, individuals use an online template service to create their estate planning documents. While these services can be helpful for understanding the estate planning process, they are not reliable in drafting an overall estate plan. Templates provide a one-size-fits-all solution to individuals with completely different goals and safeguards needed. 

More importantly, the law is continuously changing, and there is no way for a non-expert to know whether the template they are using complies with the latest and most up to date laws. While an online template service may seem efficient and cost effective now, you run the risk of a completely unenforceable estate plan. On the other hand, you can hire an expert whose job is to know and understand the law, stay up to date with the most recent changes, and provide individualized tailored estate plans based on every individual’s unique and different situation.

Conclusion

Overall, estate planning is one of the most important things you can do for not only yourself, but your family. An estate plan is a roadmap for who will inherit your assets, who will take care of your children should you pass, who will take care of you should you become unable to do so, end of life planning, and so much more. Absent an estate plan, California will make a number of decisions for you. More importantly, those decisions will fail to take your wishes into consideration.

Therefore, an estate plan ensures your wishes are respected, your loved ones are provided for, and potential disputes are avoided. Consulting with an estate planning attorney and following the necessary steps will allow you to establish an estate plan that aligns with your goals and safeguards the financial security of your loved ones.

Steps to Collect Back Child Support Payments in San Diego

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If you are a custodial parent, you are eligible to receive child support payments from the non-custodial parent. These payments are designed to help provide financial support to the custodial parent to assist in providing care and support for the children.

Child support can be sought for all children under 18 years old, or those still attending high school. Unfortunately, an oral agreement between both parents is not enough to ensure child support payment, and is also not enforceable by the courts in California.

It is highly recommended that you obtain a Child Support Order from the San Diego courts. Continue Reading