California Dreamin’ – Advanced Planning and Drafting with Wealth Docx® in California, Part 2
Peter and Sean continue discussing the substantive State (California) law that guides many decisions in trust drafting, including:
- Transmutations of separate to community property in estate planning, and the interaction of the California Family Code, Probate Code and ERISA, the impact of transmutations on death, incapacity, creditor claims and divorce, when conflicts evolve from “potential” to “actual,” requiring separate representation
- The blended family’s use of schedules, separate property trusts and separate property agreements to address different spouse’s interests and beneficiaries
- The use of trust protectors in California, the scope of permissible powers, and the duty with which they must act under relevant state law
- The extent to which third-party beneficiary-controlled trusts with limited powers of appointment retain creditor protection in California, after recent court decisions
- What is the difference between “sole discretion,” “sole and absolute discretion,” and “reasonable discretion” in California? Does it make a difference?
- How does the law determine what is for a beneficiary’s “health, education, maintenance and support” when a fiduciary must exercise discretion in distributions?
- How, if at all, can the roles of the trustee be divided in California in order to have an administration, investment and distribution trustee under State law?
- May a California lawyer represent a single individual in trust contest litigation in both their fiduciary and beneficial capacity? What remedies are available if a lawyer wears both hats?
- What other miscellaneous dialogue-box selections are necessary to avoid making mistakes in drafting California trusts?