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Mark Allen Ziebold

Mark Ziebold’s Answers

85 total


  • Will bank accounts / investment accounts that have beneficiary designation avoid probate?

    Estate Planning

    Mark’s Answer

    As attorney Reed stated above, beneficiary designations are a proper way to avoid probate on certain assets and in certain situations. If you are only looking to do an outright transfer of an asset to a beneficiary, then creating a payable on death (POD) acccount, naming them as a beneficiary of a life insurance policy or retirement account, and doing similar actions will transfer these assets so long as they have not predeceased the owner of the account or asset when the owner passes away.

    There are a number of reasons to avoid this type of planning though, because while the transfer will avoid probate, you transfer the asset outright to the individual who may have creditor problems, may be in a profession that is often subject to malpractice claims (medicine, law, etc.), or the person may use the funds in an unintended manner (you may give it to the person for retirement or to do a certain thing and they may run to Las Vegas and lose the transfer or may have a drug/alcohol dependence), etc.

    Based on the above it is better to do beneficiary designations to avoid probate, but there is often better types of planning that can be done using various types of trusts and entities for efficient transfer of assets, all kinds of tax planning, and asset protection. I would recommend that if the assets that you are looking at transferring have substantial value, then you should consult an attorney to determine what the best way to accomplish this transfer or these transfers would be.

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  • How can I change the % to each beneficiary in our will?

    We have a will and living trust. No children. We want to change the %'s of our will that have been allocated to each beneficiary. How can I do this without going to a lawyer. I know whatever I do will have to be notarized. We live in California

    Mark’s Answer

    Your question deals with the ultimate distribution of your estate and how to change the amounts or percentages that you have going to individual beneficiaries. The short answer is that it depends on how you are holding your assets (how they are titled). If your assets are titled in the name of the living trust then you must amend the terms of the trust to accomplish what you want to do. If you have some assets in the trust and some outside, then you must deal with both the trust and the will (unless the assets outside of the trust have a named beneficiary such as life insurance, retirement accounts, etc.). In most estate plans that use both a trust and a will, the trust will be the main vehicle that provides for the distribution plan and therefore it is where you must ensure that the appropriate changes are made.

    Based on all of the above, you must read the trust to see what formalities are required to amend it (while you are always able to amend a revocable trust during your lifetime, sometimes the actual practical method that is set forth in the trust varies from document to document). After you make that determination, you must create an amendment that changes all of the appropriate provisions of the trust (be careful to ensure that you do not change some but not all of those provisions or you open the door to litigation--even more so than just changing the percentages that certain family members will receive). Then you must each sign as the settlor/Grantor and Trustee and have it notarized.

    While you can certainly do this yourself, I would recommend that you seek out the counsel of an attorney to handle it as there are often multiple provisions that must be amended when you want to make a change to a trust, and if you only change some of them then you run the risk of causing more family fighting/litigation after you pass away.

    Good luck with your issue.

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  • How can I change the % to each beneficiary in our will?

    We have a will and living trust. No children. We want to change the %'s of our will that have been allocated to each beneficiary. How can I do this without going to a lawyer. I know whatever I do will have to be notarized. We live in California

    Mark’s Answer

    Your question deals with the ultimate distribution of your estate and how to change the amounts or percentages that you have going to individual beneficiaries. The short answer is that it depends on how you are holding your assets (how they are titled). If your assets are titled in the name of the living trust then you must amend the terms of the trust to accomplish what you want to do. If you have some assets in the trust and some outside, then you must deal with both the trust and the will (unless the assets outside of the trust have a named beneficiary such as life insurance, retirement accounts, etc.). In most estate plans that use both a trust and a will, the trust will be the main vehicle that provides for the distribution plan and therefore it is where you must ensure that the appropriate changes are made.

    Based on all of the above, you must read the trust to see what formalities are required to amend it (while you are always able to amend a revocable trust during your lifetime, sometimes the actual practical method that is set forth in the trust varies from document to document). After you make that determination, you must create an amendment that changes all of the appropriate provisions of the trust (be careful to ensure that you do not change some but not all of those provisions or you open the door to litigation--even more so than just changing the percentages that certain family members will receive). Then you must each sign as the settlor/Grantor and Trustee and have it notarized.

    While you can certainly do this yourself, I would recommend that you seek out the counsel of an attorney to handle it as there are often multiple provisions that must be amended when you want to make a change to a trust, and if you only change some of them then you run the risk of causing more family fighting/litigation after you pass away.

    Good luck with your issue.

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  • What do I need to do to write out my will by hand to make it legal?

    I plan on inheriting some money soon, but in the meantime I want to make a hand written will in case I die before I inherit. I dont have the money to pay an attorney right now, What do I need in the way of witnesses,notary etc? i live in California.

    Mark’s Answer

    While I do not recommend that you solely rely on a holographic will (one that does not follow the regular legal requirements but that is in the handwriting of the individual), the requirements in California are that the material provisions be completely in your own handwriting and that it be signed (under Probate Code section 6111). it is also a good idea to date the will, make sure it is legible, and clearly identify which assets are to be left to which beneficiaries. You should strongly consider hiring an attorney to create at least a basic will that follows the formalities, as many individuals who attempt to do holographic wills do not write them in a clear enough manner so as to avoid family conflicts after that person's death, and if a named beneficiary predeceases you and you do not provide for a contingent beneficiary, then the asset may go to someone that you did not intend for the asset to go to under probate. A will also gives the probate court instructions as to how to distribute your assets, but it does not avoid the probate process. If you have assets at or above 100,000, then you should consider hiring an attorney to create a revocable trust for probate avoidance.

    Good luck with your situation

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  • What is an irrevocable trust?

    can a trastor take assetts out of an irrevocable trust,to spend?

    Mark’s Answer

    An irrevocable trust is a trust that is both validly formed under the relevant state law and set up to be irrevocable (or unchangeable) after the creation of the trust. The "irrevocable" nature often does not mean that it cannot be changed at all, but that it is much more difficult to change it after it has been set up. Certain states such as California have multiple ways that an irrevocable trust can be modified (such as having the Settlor or Trustmaker and all of the beneficiaries consent), while other states only allow modification of an irrevocable trust by court order.

    As far as having the Settlor take assets out of an irrevocable trust, they are generally not allowed to do so for estate tax reasons (too much power over the assets of the irrevocable trust will create a situation where they are included in the Settlor's estate for estate tax purposes), but certain types of Irrevocable Trusts do allow the Settlor to have an income stream (such as a grantor retained annuity trust or a charitable remainder trust) while certain states do allow for domestic asset protection trusts which also may provide for a beneficial interest by the Settlor (but currently we do not have a very clear answer about whether the IRS would win on estate inclusion arguments on these types of trusts).

    No matter what your situation though, if your settlor (sometimes called trustor) is able to take out the assets of the irrevocable trust to spend as he/she wishes, then that generally isn't a very good irrevocable trust. If you are looking at an existing irrevocable trust that has these types of provisions or if you are trying to think about some ways to do some asset protection or tax planning, then there are better ways to accomplish this.

    I hope that helps, good luck with your situation.

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  • Do I need an estate planning attorney?

    I plan on completing a will and need to know if I can do it myself.

    Mark’s Answer

    As stated above, it is completely legal for any individual to prepare documents on behalf of themselves. Based on this, it is legal for you to do so, however you will also not be around to see whether or not you fulfilled all of the statutory requirements for the documents that you are attempting to write. Unless your situation is extremely simple, a consultation with an estate planning attorney will usually show you many different issues that you may not have even thought about with regard to your estate. This is especially the case if you have a large estate that would be subject to estate taxes, a blended family situation with children from different relationships, or any other fact that would create a potentially difficult situation for your executor and/or trustee.

    I would recommend that you at least go out and seek the counsel of an estate planning attorney that offers a free consultation so that you can at least compare the services that are offered to what you decide to do on your own.

    For what it is worth, I have had a few clients come in to my office with self prepared documents, and I have yet to find a client who has done it 100% correct. Some get much closer than others, but unless you do not mind potential family conflicts, it is important to get it right.

    Good luck with what you are trying to accomplish.

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  • Double trouble

    one Brother is named Trustee and if he doesn't want to or finds that he can not be a trustee than the other brother is named as the trustee. This could be a bigger problem if this happens... is there any way that they can both be removed as the Tr...

    Mark’s Answer

    From your question it sounds like they are named in the document but they aren't currently acting as the Trustee of the trust. If they aren't currently acting, then there may be a way in the trust to remove them or to amend the trust to change the list of successor trustees if the settlor (person who set up the trust) has yet to pass away. Another option would be for both of them to decline to act as the trustee, but from your question it sounds like this is unlikely as well.

    As the other answer has stated, if someone is acting as a trustee and is not following the terms of the trust or is breaching his or her fiduciary duty in some way, then you can go to court to have them be removed, but this is often time consuming and expensive. The easiest way is to amend the document (if possible) or use some mechanism in the trust document to remove and replace the trustees with some other person or entity.

    Good luck with your situation.

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  • Do I need an Attorney

    My Father passed on July 18, 2010. He had a $10,000 life policy with Reassure America Life Insurance Company. I have a letter dated May 5, 2004 that I am the beneficiary. An irrevocable assignment was signed and the funeral home was paid out $4000...

    Mark’s Answer

    • Selected as best answer

    yes, you should seek out legal counsel on this matter. An estate planning attorney can help you use the will and/or trust of the decedent to determine who was the person in charge of your father's estate. That person may be able to contact the insurance company to determine who the beneficiary of the policy was (due to the fact that your father was the owner of the policy and the person or entity that handles the estate can usually obtain information about these matters). it will ultimately depend on the insurance company and what their internal procedures are, but you should try that before going to court to get an order demanding information on the beneficiary of the policy.

    Please note though that the life insurance companies are usually very careful about paying out the death benefits to the named beneficiaries, so it is possible that a newer beneficiary designation could be on file. The question would be whether it was undue influence, duress, or the alzheimer's disease which caused your father to sign the new form. This could be another reason why you would have to seek out legal help to answer these questions. The problem though is that you are only talking about 6,000, so it may be more expensive to go after the funds than you would ultimately recover.

    Good luck with your case.

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  • About misuse of trust money

    A family member spent all the money in the trust account and wrote check to his wife to cash. Now I find there is no money left. Mine has all been spent.what can I do? And what pentiles will he and his wife face?

    Mark’s Answer

    I am assuming that this family member was the named Trustee on the trust which owned the trust account (and it isn't in the individual family member's name). First, you must obtain a copy of the trust. If you already have it, then you will have to review the trust to see if the trustee/beneficiary is using what property was given to him in the trust. If he misappropriated funds that should have belonged to other beneficiaries, then he is in breach of his fiduciary duties and can be removed and personally liable for the damages to you.

    I would highly recommend that you seek out legal counsel in your area who can help you review the trust, go in for an immediate ex parte petition to suspend that person's trustee powers, find out if any assets remain in that account or others, and if all of the money was given to the trustee/beneficiary's wife, then your attorney will have to bring actions against the trustee in court to get the assets back.

    Good luck with your case.

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  • Do the beneficiaries of a trust have legal standing to sue a former trustee for wrong doing? Which is the

    Under California law… Do the beneficiaries of a trust have legal standing to sue a former trustee for wrong doing? Which is the proper court to file a complaint? Civil or Probate Do the beneficiaries have the right to represent themselves i...

    Mark’s Answer

    Your question depends on many issues. How long has it been since the trust administration was finished (or is it still going on)? Is it questionable whether or not the actions are violating the Trustee's fiduciary duties to the beneficiaries of the trust or are the actions blatant violations of those duties or the provisions of the trust?

    In Orange County the probate court is the Lamoreaux Justice Center across from the block in Orange. That would be one proper venue for the action against the trustee for breach of fiduciary duty. I do not do civil litigation, so I do not know if a general court would hear a case of this type, but I do know that other colleagues who have dealt with lawsuits in the civil court have had them transferred over to the probate court if they were started in the civil court.

    I would recommend that you seek out the counsel of an attorney to review the existing trust document, discuss the actions that the Trustee did which cause you to think that the fiduciary duties were breached, and then decide if litigation is appropriate.

    Good luck with your case.

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