Few activities are more important, yet more intimidating and therefore postponed, than planning for your long-term security and the continued well-being of your loved ones. The assumed complexities of estate planning cause many individuals to put off this crucial task until it is too late, but with competent legal help you can lay a solid foundation for protecting your assets, your peace of mind, and your loved ones.

With over 30 years of experience as an estate planning attorney located in San Jose, California, I provide personalized legal guidance in following legal areas:

• Estate Planning
• Living Trusts
• Wills
• Powers of Attorney
• Advance Health Care Directory
• Special-Needs Trusts
• Qualified Personal Residence Trusts
• Testamentary Trusts
• Conservatorships
• Guardianships
• Estate Tax Returns
• Charitable Trusts
• Probate
• Trust Administration
• Probate administration

Keep in mind that one plan does not fit all situations when it comes to estate planning. To meet your ultimate goals, you need to be represented by an estate planning attorney who is sensitive to your objectives and is knowledgeable and experienced in the areas of trust, probate, and estate planning law. Although I have spent years in acquiring the necessary legal knowledge, I recognize the importance of an individual’s feelings and emotions when dealing with estate planning or probate. I strive to provide conscientious service and considerate attention at a time that is often difficult.

My estate planing and probate practice, located in San Jose, California, is structured to provide comprehensive and affordable estate planning solutions. Some of the means available to help you meet your personal estate planning goals include, but are not limited to, the following:

• Living Trust.   A living trust provides a means whereby you can have your estate avoid the process of probate. The trustee of your trust holds legal title to your property and manages that property as you have directed in the trust document (usually referred to as a declaration of trust). You select the person or persons to serve as trustee. You can appoint yourself as trustee of your own trust. Also, you determine who will be the trustee or successor trustee when you do not wish to serve as trustee of your trust. A living trust, unlike a will, becomes effective upon its signing. It continues to exist during your lifetime in the event of your incapacity or mental incompetence. After your lifetime, the trust will continue until terminated according to the instructions given by you in the declaration of trust or as required by law. A living trust is revocable. This means that at any time during your lifetime you can terminate the trust for any reason and legal title of the property transfers back to you. A living trust allows you to minimize or avoid the expenses, delays, and publicity of probate.

• Will.   A will, or last will and testament, transfers the real and personal property you hold your name to the person or persons and/or organization you want to receive the property upon your death. You name in your will the person you want to carry out the instructions contained therein. This person is called your personal representative, executor, or executrix. A will is the document where you can name a guardian for any minor children. Unlike a living trust, a will does not become effective until your death and it has been admitted to probate. A type of will, known as a pour-over will, is used when you have a living trust. It provides a safety net in case some of your property was not transferred to your living trust.

• Advance Health Care Directive.   An advance health care directive was formerly composed of two documents; a power of attorney for health care and physicians directive or Declaration Under A Natural Death. Some other terms used for an advance health care directive include living will and health care proxy. In an advance health care directive you designate the person you want to make decisions regarding your health care in the event that you are unable to make your own decisions. Also, an advance health care directive permits you to give doctors and hospitals your personal instruction regarding the nature and extent of the health care you want provided to you should you suffer a temporary or permanent incapacity, such as an irreversible coma.

• Durable Power of Attorney for Property.   This document enables you to designate a person to act on your behalf in regards to your financial matters should you be unable or unavailable to act for yourself. A durable power of attorney, unlike a regular power of attorney, does not terminate should you become mentally incapable of making your own financial decisions. A durable power of attorney for property management can avert the need for a conservatorship and the accompanying delays, expenses, and publicity.

• Probate/Estate/Trust Administration. The administrative services I provide furnish the legal guidance needed after a family member has passed away. I handle the necessary probate or trust administration proceedings, tax matters, accountings and the implementation of the plan of distribution contained in the trust or will.

• Family Limited Partnerships/Limited Liability Corporations.   These types of organizations can be used to own and manage your property, in a manner similar to a trust, while allowing the utilization of additional tax planning techniques. A family limited partnership or limited liability corporation is typically used if you have a large estate and therefore need specialized estate planning in order to minimize taxes and protect your assets.

With new laws being passed on a regular basis, the guidance of an experienced estate planning attorney is critical in assuring that your personal estate planning goals are understood and accomplished. Proper estate planning can ensure that your invaluable legacy is not wasted and that your loved ones are cared for according to your wishes. Avoiding probate costs, expensive court proceedings, and unnecessary taxes are important elements in preserving the integrity of your estate.

If you, or someone you know in California, needs the assistance of an experienced San Jose estate planning attorney, please do not hesitate to call James L. Evertts at 866-639-2904, or complete the contact form provided on this site to schedule your initial consultation.

Practice Areas and Legal Definitions

Estate Planning:

A good estate planning is more than a simple will. It minimizes or eliminates potential fees and taxes, such as the federal estate tax and generation-skipping tax, and distributes your property in the manner that you want. It provides a plan to make sure that your wishes regarding healthcare treatment and living conditions are known and followed. A good estate plan coordinates what happens in regards to real property, investments, business interests, life insurance, employee benefits (401(k) plan) and other property in the event of your disability or death.

Trusts:

A trust is a legal tool that allows you to transfer title of your property to a third party ( known as a trustee) who manages the property according to your directions for the benefit of the person you have chosen. A trust can extend beyond your lifetime. The use of a trust makes it easier to minimize taxes and thereby leave a larger inheritance for your loved ones. Also, a trust can simplify the distribution of your state. A trust can be used to provide a steady stream of income over a designated period of time to a beneficiary rather than a single lump-some distribution. Periodical distributions may reduce the tax burden on a beneficiary. Also, a trust can property the property in it from the creditors of a beneficiary. A trust may be established for the benefit of an individual, charitable organization, or a non-charitable organization. The greatest tax benefits occur when a trust is set up to benefit a charitable organization.

Probate:

Probate is the legal process whereby the property of a deceased person is collected, debts are paid, and the remaining property is distributed according to either the terms of a will or as is provided by state law (when there is no will). You may want to avoid probate because of the length of time to complete the process (usually one to two years). However, the probate process may be beneficial if there are unknown creditors of the deceased person. In probate a creditor has only four months to file his claim after the estate is opened.

Wills:

A will is a written document containing your directions about how your property is to be distributed upon your passing. As the maker of a will, you are referred to as the testator. A will is the appropriate document for appointing another person (called a guardian) to care for any minor children. Also, in a will you can make gifts to a charity or create a posthumous trust. A will becomes effective upon the death of the testator and the admittance of it to probate. In order for a will to be legally valid, the testator must sign the will in the presence of at least two witnesses, be mentally competent, and be free from the duress or the controlling influence of another person.

Probate Property:

The assets in an estate are classified as either probate or non-probate property. Probate property is property that is transferred through the probate process. Non-probate property is property that is distributed outside of the probate process. Non-probate property is usually property jointly owned and that passes by right of survivorship to the surviving owner or property distributed according to a specified beneficiary designation. Examples of property passing by a beneficiary designation are proceeds from a life insurance policy, the funds in an IRA, and the property in a trust.

Power of Attorney:

A power of attorney is governed at the law of agency which is concerned with a delegation of power from one person to another individual. The person granting the power is known as the principal. The person receiving the delegated power is called the attorney-in-fact or the agent. A power of attorney can be limited to a specific activity or extended to all activities. A power of attorney can become effective immediately upon its signing by the principal or upon the happening of a specific event in the future. The latter known as a “springing” power of attorney. A durable power of attorney is often used to avoid the need for a conservatorship.

Conservatorship:

A conservatorship is established by an order of a court when a person is partially or fully unable to care for his or her person and/or manage his or her financial affairs. There are two types of conservatorships. There is a conservatorship for the physical care of a person. Also, there is a conservatorship for the management of the financial affairs of another person. The appointment of a conservator requires making a petition to a court of competent jurisdiction, providing supporting evidence of the need for the conservatorship, an investigation to determine the necessity of the conservatorship, and a court hearing. After the conservatorship is established periodic reports to the court are required.

Estate Taxes:

The money and property you own when you die (your state) may be subject to the federal estate tax at the value of your estate exceeds the applicable exclusion amount for the year of death. The applicable exclusion amount for 2008 is two million dollars ($2,000,000.00). They federal estate tax is separate from other taxes to which your state may be subject. Some of these other taxes may be federal and state income taxes, federal gift tax, and the federal generation-skipping tax. Planning for your state should include efforts to minimize or eliminate these taxes.

Charitable Trusts:

In a commonly used type of charitable trust, known as a charitable remainder trust, the owner of property transfers that property to an irrevocable trust which has named a charitable organization as the beneficiary to receive the property when the trust terminates. The owner retains an income interest for his or her lifetime. Often, the trustee sells the property and invest the proceeds of the sale to provide the income payments to the owner for his life or her lifetime. A charitable trust may be used to remove greatly appreciated property from an estate and thereby reduce any federal estate tax to on the death of the owner. Charitable trusts are frequently used in larger estates or where the owner has philanthropic interests.

If you or someone you know in California needs the existence of an experienced estate planning attorney, please call James L. Everts today at 866-639-2904, or complete the contact form provided on this site to schedule your initial consultation.

If you or someone you know in California needs the assistance of an experienced San Jose Estate Planning Attorney, call James Evertts today at 866-639-2904, or complete the contact form provided on this site to schedule your initial consultation.

ADDRESS OF THE FIRM:
Law Office of James Evertts
95 S. Market Street
San Jose, CA 95113
Telephone: 866-639-2904
Fax: 408-292-1894

MEMBERS OF THE FIRM:

James Evertts