At one time, the majority of funerals took place in religious communities or mortuaries. However, more estate planning clients are looking for alternative, hybrid, or even home funeral options.

Funeral plans are often included in estate planning processes, providing clear instructions about what you want to happen to your body after you die as well as a detailed plan for where and how people can honor your life—and their grief.

Tips For Creating Your Own Funeral Plans

Planning your own funeral is not only a way to personalize the experience, or to save money (they’re typically far more affordable than a traditional funeral), but it also takes the guesswork out of things for your family and loved ones left behind.

When you die without a will or estate plans, and without any instructions about your funeral or celebration of life, it puts a tremendous strain on loved ones. For one thing, they are in the midst of grief because of your death, and that makes it challenging to think clearly, make decisions, or agree about what you would or wouldn’t have wanted. That last point can lead to unnecessary tension and fallout for families.

So, creating your funeral plans before you die and giving those instructions to individuals you trust can be an invaluable gift to those left behind.

1. What is your plan for your body after you die?

In our post about end-of-life documents, we discuss learning more about your options regarding the body after you pass away. For example, many people don’t realize that in most cases, you don’t have to be immediately whisked away to the mortuary.

There are rising numbers of people who want their bodies to be left alone for a bit, allowing their closest loved ones to see/be with them one last time, to wash them or dress them, to sing a favorite song or read a poem or blessing, and so on. This type of honoring the body after you die is called a “vigil” and can be done at home, in a relative’s or friend’s home, at the hospice house, and so on.

And then, of course, you will want to decide whether you plan to be buried, cremated, composted, have a natural burial, donate your body to medicine/science, and so on. Determining what you want to do with your body often paves the way for what comes next. For example, if you’re choosing to have a green burial, odds are the burial ground won’t allow any embalming to occur, and that alters your after-death care process.

2. Choose the type of service you’d like to have

One way to plan your own funeral is to go to the church or mortuary of your choice and learn more about their services. We recommend visiting multiple mortuaries or funeral homes. Each one is different, and odds are one of them will appeal to you more than the others. Some people are opting to have home funerals, which provide a wide range of options. You can visit the National Home Funeral Alliance Website to learn more about that option.

Here are things to consider when making personalized plans for a funeral service:

• Do you want to have some type of viewing? If so, public or private?
• Should the body be at the funeral/service? If so, open or closed casket?
• Would you like to have a service at the graveside or at the crematorium?
• Does it matter to you that the experience be as eco-friendly as possible?
• If you’re choosing to be cremated, where do you want your ashes to be stored, buried, or scattered? Some people prefer them to remain in an urn or custom container and then buried or scattered with their partner, family members or their pet. Others opt to have their ashes scattered in a favorite location (or a portion scattered in multiple locations).
• Would you like there to be a service when your ashes are interred or scattered?
• Will there be food, music, or special ceremonies, rituals, or other activities that are meaningful to you?

The more details you provide in your plans, the easier it is for loved ones to accommodate your wishes—and get things in motion, knowing they’re honoring your wishes.

3. Who do you want to be involved or have roles?

Many funerals, memorials, and celebrations of life include your loved ones. This is a way for them to honor you and is an important part of their process of letting you go. This can include any manner of things, but some of the most common include:

• Someone to facilitate the ceremony, service, or an event (often clergy or designated officiants do this—although anyone can officiate a mortuary or home funeral).
• People to write/read eulogies.
• Those you may ask to participate in readings of your favorite religious passages, poems, passages from favorite writers, or perhaps even a letter from you.
• Musicians or vocalists to sing your favorite songs or the song(s) you’ve chosen to be part of the service or celebration.
• Pallbearers to carry your casket.
• Individuals to sit at the guest book area who greet people and have them sign the book.
• Ushers to escort guests to their seat.
• And so on.

In most cases, we recommend letting people know what you would like them to do to ensure they’re comfortable with the role or task. Also, it’s a way for you to connect with them and let them know how special they are to you.

4. Consider taking care of the finances ahead of time

If you make proactive arrangements with a local mortuary or funeral home, you can typically purchase a package and pay for all of the fees up front. This can be very helpful to your heirs and beneficiaries because it may take a while for the estate to be settled. If money is at all an issue, paying up front or leaving a specific amount in a bank account (that your spouse, power-of-attorney, or your estate trustee can access) ensures money is never an issue at such an emotional and stressful time.

Never Underestimate the Peace of Mind Planning Your Funeral Can Offer

One of the primary reasons people avoid creating estate plans or planning their funeral is that they don’t want to think about dying. Or, in many cases, that feels so far away. There’s an often false belief or assumption that “I can do that down the road.” However, we all know that death is inevitable, and we all know if can happen any time.

As experienced Bay Area estate planning attorneys, we see time and again that when clients take initiative and proactively create their estate plans, make their own funeral arrangements, or provide ideas or requests for their celebrations of life, they feel more at ease and gain peace of mind. They often say things like, “I didn’t realize how much I actually worried about that until it was done.”

Tseng Law Firm Helps You Plan Every Detail

Tseng Law Firm has guided clients through estate planning essentials, including funeral plan options and arrangements for more than a decade. Contact us to schedule an appointment and learn more about how we can help you achieve peace of mind, know your plans are in place, and that your loved ones are taken care of.

While most trusts are designed to split assets relatively equally between children, pot trusts are flexible and distributed at the discretion of the trustee, ensuring that the funds are allocated based on each child or beneficiary’s actual financial need, rather than an equal division.

While this can serve as a general guide to pot trusts and their benefits (and cons), always discuss your final estate plans with a licensed, experienced estate planning lawyer before choosing this option over other types of trusts.

Pot Trust 101: A Smart Estate Planning Tool For Young Families?

Pot trusts are typically a wise choice for individuals or couples:

• With two or more children.
• Where at least one of the children is still a minor.
• With children who are still young adults, in college, etc.
• Who plan to leave the entirety of their estate to the children.

Of course, children grow up and family dynamics shift over time. If you create a pot trust, it’s a good idea to review your estate plans annually. At some point, when your children are old enough, you’ll want to meet with your estate attorney to dissolve it or morph it into a different type of trust.

The trustee selection is critical to the trust’s success

Choosing the right trustee is always critical, but it’s essential when dealing with a pot trust. These trusts can become a nightmare for the trustee if you haven’t done your due diligence ahead of time.

Here are some of our time-tested recommendations for pot trust trustees:

• An adult sibling may not be the best choice as trustee.
• Choose someone who is impartial and has no financial interest in the trust.
• It can be wise to choose a non-family member so tensions/conflict are kept outside of the immediate family.
• Make sure the person is 100% willing, has met with your attorney, and understands all of their responsibilities (including annual tax filings until the trust’s termination date).
• Select someone who is financially savvy.
• Select a backup trustee in case something happens to your first choice or life circumstances render them unable to manage the trust responsibly.

We can help you determine who might be the best fit for the trustee responsibilities. In some cases, your estate attorney is the most logical trustee choice because this keeps things 100% neutral and outside of the family dynamics.

What is different about a pot trust?

Here are some ways that pot trusts differ from more traditional trust options.

1. All of your assets are pooled into one “pot.”

This is how the trust got its name. Unlike other trusts that may compartmentalize or have specific instructions for specific assets, pot trusts pool them all together. From there, they are distributed as needed by the trustee.

2. There isn’t a set allocation percentage per beneficiary.

Most trusts allocate a specific percentage of the trust or amount per beneficiary. In pot trusts, the amounts provided for the beneficiaries (typically children, step-children, or other dependents). Children’s financial needs vary over time and depending on specific situations.

So, for example, the trustee would use the pot trust for:

• A child’s medical bills after an accident, hospitalization, or any other event that stretches beyond the normal annual medical expenses.
• To help with college tuition, trade school fees, etc.
• Braces (which one child may need while another may not).
• Fund extracurricular interests or events.
• And so on.

3. The trustee can be different from the guardian

Let’s say that the person/couple you’ve selected to be the legal guardians for the children after you die is not necessarily the most financially frugal or sound. In this case, the pot trust is a wise method for ensuring your children can be with the person/people with whom they’ll feel the safest, loved, and seen (or who you know will take the best care of them) without worrying about the financial aspects of the arrangement.

Those can all be handled by the pot trust’s trustee using whatever methods or protocols make the most sense for the situation. Your estate planning attorney can help you establish this and can also meet with you, the prospective guardian(s), and the trustee to ensure everyone is on the same page.

4. You determine when the trust is terminated

Because pot trusts are established to pool resources for minor and young adult children, most have a termination date. You can set that date for anything you wish. Most clients determine a specific age at which the trust ends, such as when the child is 18, 22, 25, etc.

At this point, once the last child reaches the termination age, the trust can be shifted to another type of pre-established trust, or you can simply divide the remaining assets evenly among your children. However, let’s say the termination date for the pot trust is when the last child turns 18 or 25. In that case, you may want to set up a child-specific trust that protects those assets until they are older (and wiser) about managing access to lump funds.

5. They allow you to balance asset distribution in a before/after scenario

Let’s say that you have a 13-year-old son and a 22-year-old daughter. While your son is only beginning to think about things like driving, high school club sports, and college, your daughter has already reaped the financial benefits of thousands of dollars spent on all of those to date.

If you were suddenly killed in a car accident, and you split the assets evenly, your daughter would have had a significant advantage. In this example, a pot trust would even out that financial gap for your son until he reaches the age the pot trust extends to, at which point the assets are divided equally.

The downfalls of using a pot trust

There are certain negatives associated with pot trusts. Your estate planning attorney should do their best to mitigate these during the creation of the trust before encouraging you to move forward. Some of the downfalls can include:

• Adult (or older, minor) children feeling resentful that they don’t have access to the trust until a younger sibling ages out. However, in “real life,” it’s extremely rare that financial allocations are identical between children anyway. Frontloading age-appropriate communication between siblings or immediate family ahead of time can help alleviate this.
• Children who have aged out of the trust may feel resentful because their assets are virtually frozen until the youngest child reaches the trust’s termination date. This scenario can be alleviated by creating individual trusts for children who are nearing or have already “aged out” of the pot trust.
• Conflict or tension within the siblings or extended family about discrepancies in who got what (i.e. child X is getting more money than child Y, etc.). This can happen unexpectedly if one child becomes seriously ill, injured, or requires significant medical or mental health funds, etc.). NOTE that a pot trust is not used the same way as a special needs trust.
• Complications may arise if you have a blended family or a less-traditional family unit.
• Trustee burnout (which is why the trustee selection is so important).

Learn More About the Pros & Cons of Pot Trusts With Tseng Law Firm

Would you like to learn more about pot trusts and other estate planning tools to support your young family in the event of an unimaginable occurrence? Schedule an estate planning consultation with Tseng Law Firm. We have years of experience helping Bay Area families determine which trusts and estate planning tools are the best fit for their needs.

We look forward to providing your family with future security and invaluable peace of mind.

Learning as much as you can about the Deceased Spousal Unused Exclusion (DSUE) for estate taxes—and the potential for portability—can save you or your spouse millions of dollars in unnecessary taxes. However, spouse estate tax portability is not automatic, which is why you should always work with a licensed, Bay Area estate planning attorney who can ensure your future plans protect—rather than expose—your assets.

Federal Estate Tax Portability or DSUE Explained

Each U.S. citizen has a federal estate and gift tax exclusion amount, which is a specific value of assets that can be transferred during life or at death without incurring estate or gift taxes. In addition to that, the IRS allows a surviving spouse to use any unused portion of their spouse’s estate tax exemption, called the Deceased Spousal Unused Exclusion (DSUE), which can significantly alter the amount you can be taxed. This unused portion is considered “portable” since it migrates from the deceased spouse to the surviving spouse.

Each year, Congress passes laws determining the value of inheritable taxes that are tax-exempt. This means that people can inherit assets up to a certain amount before being taxed. According to the IRS, this figure has steadily increased each year since 2011. In 2025, the estate tax exemption is set just shy of $14 million at $13,990,000 per individual, but there is talk that Congress plans to reduce that value significantly, which is why time is of the essence.

Using the 2025 figures, let’s say your spouse previously inherited $5,990,000 and filed the correct forms to make that income tax exempt. When they died this year, they still had $8,000,000 of their tax exemption left. Now, that amount can be transferred to you, meaning your estate tax exemption goes from $13,990,000 to $21,000,000, which significantly diminishes estate tax liability on current or future inheritances or gifts.

California Does Not Impose a State Estate Tax

Currently, California does not impose a state estate tax. So, if you are a California resident, you will not be taxed on inheritances. That means that portability (DSUE) for estate tax only affects Californians when they file their federal taxes.

The Portable DSUE Is Not Automatic

Estate tax exemptions are not automatic and typically require heirs or beneficiaries—including spouses—to file estate tax-specific documents. If your spouse dies, you must file a U.S. Estate, Gift, and Generation-Skipping estate tax return (Form 706) must be filed if the gross estate of the decedent (who is a U.S. citizen or resident), increased by the decedent’s adjusted taxable gifts and specific gift tax exemption, is valued at more than the filing threshold for the year of the decedent’s death.

Timing for filing can vary depending on your situation, and there are typically fees associated with filing for portability—mostly estate-planning attorney and tax-filing fees. However, these fees are well worth the tax benefits.

Limitations of Spouse Estate Tax Exemption Portability

There are certain limitations associated with portability, especially for more complex estates.

For example:

Assets with high appreciation may push you over the limit. For more comprehensive estates, certain assets may exceed the DSUE limitations, leaving you vulnerable to taxes and fees (or penalties if not handled correctly). In this case, your estate lawyer or financial planner may use other creative strategies for tax shielding purposes.

State taxes could be levied if you relocate. We mentioned above that California doesn’t have estate taxes. However, other states do. Currently, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington, and Washington D.C. implement estate taxes. These are worth considering as you look ahead to where you want to live. Also, if your spouse dies, you’ll want to consider tax implications if there is any chance of you relocating to another state until the estate is completely settled.

The GST is exempt from portability. The generation-skipping transfer (GST) tax is not portable between spouses.

You can only take advantage of DSUE portability one time. While you can take advantage of one deceased spouse’s remaining estate tax exemption, it is a one-time only tax benefit. If you leveraged portability from your previous deceased spouse, you cannot accumulate more estate tax exemptions from successive deceased spouses.

Schedule a Consult with Tseng Law Firm To Leverage Portability to Your Advantage

The more comprehensive your estate, the more complex the planning process is. That requires astute strategizing by an experienced estate planning attorney.

Schedule an estate tax planning session with Tseng Law Firm to learn more about portability (DSUE) for estate tax planning and what you need to know.

Does your current estate plan account for the digital assets you have acquired over the past five to ten years? As the world increasingly moves off paper pages and out of brick-and-mortar buildings, it moves increasingly into the digital realm – and that means you may have valuable digital assets that aren’t accounted for in your current will, trust, or even a more comprehensive estate plan.

Examples of Digital Assets

First, let’s identify the most common digital assets worth including when you meet with your estate planning attorney:

Personal digital property

Personal digital property includes things like:

• Domain names
• Intellectual property that is copyrighted or trademarked, including any digital coding you own
• All of your computing hardware and digital devices
• Information stored online or in the Cloud, which includes your email accounts, social media accounts, photo and video storage, digital albums, online storage accounts, video gaming accounts, or any websites/blogs that you write or manage
• Hard or digital backup drives or storage devices

Failure to include these items and their access/passwords could mean a loss of priceless family photos or key information that left out during the most recent estate planning update.

Personal digital Assets with monetary value

Then there are digital assets that have monetary value, and these can accidentally slip off the radar when creating your estate plan:

• Websites or blogs that generate revenue, including Amazon, eBay, Etsy, Craigslist, and others
• Photos, art, eBooks, music, or any other type of digital or intellectual property that generates revenue for you
• Domain names
• Digital accounts used to pay/receive or save money, like PayPal, CareCredit, Rewards Programs (all those frequent flyer miles, for example), or other accounts with credits in your favor

As you can imagine, these same types of digital assets are also held by business owners, in which case they are considered digital business property, and should be handled accordingly. Again, your estate attorney should help you brainstorm to remember and add any digital assets you’ve forgotten about along the way.

Make a List of Your Digital Assets

Make a list of your digital assets and keep it stored in a Cloud or clearly marked backup device in your safe, safe deposit box, or in the pocket of your estate planning folder.

While digital property is accounted for similarly to real, physical property or financial assets, its online, password-protected nature makes things tricky if digital assets aren’t accounted for in your will or trust.

• List each account and its online address
• Add your username
• Write the password for each one and make sure to update the list each time you have to change a username or password

Make a list of any computers, tablets, gadgets, etc., that require a login/password and include the information for these as well.

The Importance of Documenting Accounts, Usernames and/or Passwords

We can’t emphasize enough how vital the accuracy of your digital assets account names, usernames, passwords, and other log-in information when it comes to your estate plan. In order to protect your identity and your privacy, stringent rules and laws have been put into place. They can be impossible for your estate’s executor, spouse, or family members to navigate without accurate password information or the correct legal documentation.

Many companies will not even release information upon receipt of an official death certificate and/or legal proof of your executor’s role in your estate. Ensuring your estate plan gives your trustee or executor the authorization required to access any necessary digital data can mean the difference of preserving those assets or losing them completely.

Decide How You Want the Assets Handled

Some clients prefer that all of their email accounts and social media accounts are deleted within a certain amount of time after they die, while others are fine having designated family member(s) or a friend(s) manage the account for them to keep their memory alive.

The How of how each digital asset is handled is up to you, and your estate’s executor (or your designated “Digital Executor”) is beholden to carry out those wishes. If you have online stores or revenue-generating accounts, determine whether or not they close down immediately upon your death, whether they’re to remain open until revenue/goods are sold out, or whether the assets are passed to someone else. The same is true of any other revenue-generating, digital assets you own or control.

State of California

This designation is not always a legally binding or enforceable position in most states. For example, the State of California passed “The Revised Fiduciary Access to Digital Assets Act” in 2017, which allows executors and trustees the right to gain access to digital assets after an individual’s death under certain conditions.

If you plan to select a Digital Executor who is different than your executor or trustee, it’s wise to choose someone who can work well with your legally recognized representative.

Contact the Tseng Law Firm to learn more about estate planning for digital assets in the state of California.

The digital era has brought more ease in some ways, but it’s also provided another route for malicious people to scam innocent victims – and estate planning is no exception.

Working with an experienced and reputable estate planning attorney is the only way to ensure your estate is protected from scammers and other potential threats.

Identify & Prevent These Top 5 Estate Planning Scams

Remaining informed of some of the most common estate planning scams is one of the best ways to avoid being taken in by malicious scammers. Here are five of the most common estate planning scams and tips on how to avoid them.

1. Scams that take advantage of seniors

By far, the worst estate planning scams out there are the ones that target seniors. Scammers know that busy working families are the least likely to have substantial savings or equity of any kind. However, seniors are easy targets because, in addition to having larger savings accounts and noteworthy retirement funds, they often have paid off homes with enviable equity.

When you pair that with any type of dementia or memory loss, it’s a recipe for scammers to easily tap into a victim’s estate without leaving a trace. If you do not have a secure estate plan in place, especially by age 65 or with any medical diagnosis that involves cognitive decline, it’s time to do so immediately.

By working with an estate planning lawyer, a designated power of attorney, etc., your financial accounts are vulnerable. It is devastating to see the tens of thousands or even hundreds of thousands of dollars lost by scammers who have earned the trust of innocent victims, or who have completely taken advantage of someone whose cognitive decline prevents them from being able to discern a potential scam in action.

2. Living Trust Mills Scams

It is true that community-minded estate planners often host workshops or other educational events that provide information on various types of trusts, wills, and other estate planning tools. However, these events should be purely educational and should never be used to sell products or put high-pressure methods into motion to get people to sign up for a “one-size-fits-all trust.” Even worse, these aren’t real estate planning attorneys. Instead, they are scam artist salespeople who have packets of pre-created “Trust Packages” for “affordable prices.”

Not only is every estate different, but people also have different goals for how they want to manage their estate or what the estate provides for them. Trusts should be personalized to an individual and their goals, which requires meaningful conversations with an estate planning professional. No credible estate planner would ever have clients sign boilerplate trust forms.

The best way to avoid Living Trust Mill Scams is to avoid any estate scam solicitations by phone or mail (more on that below) and to vet the credentials and experience of any estate planner you work with. Also, never sign trust documents that you don’t understand. If any “educational trust workshop” gives you that uncomfortable feeling of high-pressure sales, or the estate planning “experts” are using gimmicks or salesy tricks, don’t trust it and leave immediately.

3. Being charged excessive or hidden fees

Here’s another reason why it’s so important to research estate planning firms before you choose one. It’s a good idea to meet with at least three to five estate planners in your area so that you can make the best choice for you and your family. Sometimes, estate planning scammers use add-on fees to hoodwink their victims into paying far more than they should. They charge you a very reasonable or even “lower than average” fee to create your living trust, but they do not inform you about all of the hidden fees they’ll bill you for later for things like your medical advance directives, including a charitable trust, or any other additional documents you may need.

Most estate planning attorneys charge flat fee rates for their time. They may offer estate planning “packages” to help save you (like a bundled package), but they will provide very clear and detailed information about what those packages include. There should never be hidden fees or bills you didn’t expect. Every part of your estate planning process should feel 100% transparent.

By meeting with multiple estate planning firms, getting estimates for what you need (which gives you a good idea about the current rate for estate planning), and then choosing the one that’s best for you prevents you from paying excessive or fraudulent fees.

4. Soliciting services by phone (or mail)

If you get a cold call from anyone trying to sell you estate planning services, consider them a scam. This is not how any high-quality estate planner does business. We do not use cold calls to solicit customers. In fact, the majority of our clients come to us via word of mouth or because they’re vetting estate planning services via internet searches.

Once in a while, a good estate planning attorney may do some type of mail promotion of their services or educational offerings. However, if you attend – do so with a discerning mind. If they are legitimate, you’ll never feel any pressure, they’ll break down estate planning terminology and legalese, and they will never expect you to pay any fees.

5. DIY estate plans using templates

Yes, estate planning is an investment. However, when done by ethical, experienced lawyers, the money you spend will be minimal compared with how the estate helps to protect your financial health and your loved ones’ future. So, while we understand the initial temptation to go online (or unwittingly trust a scammer) in order to save money, DIY estate plans may leave your estate vulnerable and cannot be trusted.

Your DIY estate plan is unlikely to meet all of your goals, can cost your heirs thousands of unnecessary dollars in taxes or probate fees, and leave significant loopholes for your relatives to contest the plan, which causes such unnecessary stress, heartache, and financial burden on your loved ones. A one-time investment to get your estate plan done right – and then reviewing and amending the plan over time – is more than worth what you’ll pay.

Tseng Law Firm Promises a Trustworthy Estate Planning Experience

Tseng Law Firm wants you and your family to enjoy the peace of mind you receive when your personalized estate plan is on file and ready to serve your loved ones when needed. We promise you a completely scam-free estate planning experience. Contact us to schedule a no-obligation discovery session and learn more about our services.

Blended families are increasingly more common and, depending on when the second marriage takes place, they can add several layers of complexity to your estate planning journey. 

To accommodate the unique needs associated with asset protection and distribution after your passing or the death of a current spouse, estate planning professionals created a specialty trust – referred to as a QTIP trust. 

If you plan to remarry, we recommend scheduling a consultation with an experienced, local estate planning attorney to discuss how the marriage will impact your estate, allowing you to make informed decisions about your next steps.

QTIP Trusts Defined: Who Are They For and What Do They Do?

QTIP trust is short for a qualified terminable interest property trust. They are created to go into effect if you die before your current spouse.

A qualified terminable interest property trust protects designated assets as long as your current spouse is alive. Still, it ensures you have complete control over the distribution of those assets after they pass away. 

However, it’s essential to note that a QTIP trust is a distinct type of trust and is considered irrevocable, meaning it is exceedingly difficult and nearly impossible to alter or amend it once established. That’s why we cannot overemphasize the importance of consulting with a highly qualified attorney before adding a QTIP trust to your estate planning toolkit.

Is this powerful estate planning tool right for you?

While there are exceptions, QTIP trusts are most often used for those with larger estates that exceed California’s federal estate exemption amount (currently $13.99 million in 2025), but there are exceptions. 

These estates can benefit clients who use the trust to:

• Avoid probate (without solid, legal estate plans in place, California intestate succession laws can blow your plans and intentions right out of the water). 
• Reap substantial tax savings.
• Control the amount of money allocated to their spouse (via an income).
• Have control over who the heirs and beneficiaries are after your spouse dies.
• Safeguard assets for their heirs.
• Control how the remaining assets are distributed.

We recommend being transparent about the QTIP trust’s parameters with other immediate heirs and beneficiaries so they have an idea of what will happen after you die. While the news may not always land well (depending on the situation), it gives you time to work through it. 

Reviewing and discussing relevant estate planning points with your children can also alleviate future issues between your spouse and other heirs because it’s all been established beforehand. Your estate planning attorney is always happy to help facilitate or mediate these conversations. 

Benefits of a Qualified Terminable Interest Property Trust

There are several ways a QTIP trust works in the interest of your surviving spouse as well as other heirs and beneficiaries.

Providing income and security for your spouse

One of the most desirable benefits of these trusts is that they ensure your spouse is taken care of for the rest of their life (or as per the terms of the trust) if you precede them in death. In addition to an annual income, we can craft additional protections, such as ensuring they can remain in your primary home and retain ownership of additional vacation properties or assets, providing additional financial support for future medical expenses or long-term care, and so on.

Tax benefits for the estate

Many remarried couples find a QTIP trust to be one of the best solutions for reducing tax obligations. Once you’ve moved assets into the trust, they are protected by the unlimited marital deduction. So, when the first spouse dies, the second is relieved of potentially significant taxes owed. These are temporarily suspended until the second spouse’s death.

To protect children from other marriages

Most of the clients who choose to use QTIP trusts have blended families. This can mean wanting your assets, heirlooms, collectibles to be passed on to biological, step-, or former foster children – as well as anyone else you specify.

Some of these things can be distributed immediately upon your death using more standard versions of a will and trust. If, however, those assets contribute to your surviving spouse’s income or you want them to enjoy them for the duration of their life, you can ensure assets, properties, heirlooms, etc., are distributed according to your preferences after your spouse dies.

As an asset protection strategy (particularly from creditors)

One of the most common uses of an irrevocable trust is to protect certain assets from creditors. The QTIP trust format is no different; you can use it to incorporate stocks, bonds, retirement plans, properties, and other assets, all of which are safeguarded from being diminished by creditors.

These are some of the benefits that attract clients to QTIP trusts as a sound step in estate planning and future asset management. However, there are always inherent risks or potential downfalls to any long-term (and irrevocable) estate planning strategy.

Serious Considerations (& Potential Cons) For QTIP Trusts

Your estate planning lawyer can help you run through the pros and cons to determine whether it’s a smart strategy for your estate goals. Here are some of the serious considerations and potential cons associated with implementing a QTIP trust. 

Lack of long-term flexibility

Becuase of the trust’s irrevocable nature, its inflexibility can pose problems down the road. This is especially true if you establish a trust 10 or 20 years before its implementation, by which time unforeseeable life events (other deaths, divorces, marriages, etc.) may have drastically altered what your beneficiary preferences would have looked like in real time. 

Associated legal, financial, and other administrative costs

These trusts are more complex than a typical living will, so they incur higher costs to establish. Most of the time, it involves fees from both your legal team and a financial planning advisor, as well as tax accountants, among others. This type of trust continues to require successive administrative fees, including tax filing, throughout its lifetime, resulting in ongoing expenses. 

The potential for conflict and strained relationships

Depending on your blended family dynamic, QTIP trust can be a source of conflict for heirs and beneficiaries, and this conflict may not rear its head until after you’re no longer there to serve as a buffer between angry children/heirs and your widow(er).

Loved ones may be opposed to anything from having “their inheritance” dependent on your spouse’s remaining life to the taxes that may eventually be imposed on them, and cannot be foreseen since tax laws are ever-changing.

Tseng Law Firm Walks Clients through the Ins & Outs of Complicated Estate Plans

When they’re the best fit, QTIP trusts do a wonderful job at protecting your assets and the ones you love long into the future. 

Schedule an estate planning strategy consultation with Tseng Law Firm. We’ll walk you through the ins and outs of QTIP and other more complex estate plans that may be just right for your short- and long-term goals.

Implementing asset protection strategies is essential if your estate is at risk in any way. However, since California does not allow individuals to create domestic asset protection trusts, it requires careful—and sometimes creative—planning to ensure your assets aren’t gobbled up by litigation, creditors, a spendthrift spouse or child, business partners, and so on.

Scheduling a consultation with an estate planning attorney is the first step in evaluating your situation from all angles and designing an estate plan that engages strategies to protect assets from potential threats or risks.

Top 5 Risks To Your Assets

Here are some of the top five risks that threaten your estate’s assets before and after you die. Working with an experienced estate planning attorney can ensure all of these remain in the hands of your preferred heirs and beneficiaries.

Not having a legal estate plan in place

The biggest risk to your assets is not having a current, legal estate plan in place. When you die without a will or trust in California, or if your will/trust is easily contested, your assets will move into the probate court’s hands, where they’ll be distributed via California’s intestate succession laws.

And, as you’ll see in some of the protection strategies used below, these asset protection strategies for estate plans aren’t only about “after you die.” Many of them protect your assets from the moment you put them into place, which is an example of how estate plans—and estate planning tenets—are just as necessary while you’re alive as they are if you become incapacitated or after you die.

Creditors or litigators

Creditors are the first in line to get what they are owed from your estate after you die, and they are legally entitled to do so. Depending on the amount of your debt and unpaid bills, which could also stretch from your business (more on that below), your estate can be quickly whittled down, significantly reducing the amount you have left for heirs and beneficiaries.

Even those with a modest estate should consider some type of asset protection if:

• You have significant recurring/revolving credit card debt.
• There is a substantial balance on private student loan debt (most federal student loan debt is discharged after someone dies, but that’s not necessarily true for private loans).
• The balance on your mortgage is particularly high, OR more than the home is worth.

Similarly, your estate is vulnerable to any litigation that may arise regarding monies owed or agreements made, especially if your business was vulnerable. Doctors and lawyers are also prone to being sued and are often advised to implement asset protection strategies when creating their estate plans.

Business partners and other related parties

If you own your own business, structuring assets under the correct business entity is one of the most effective ways to protect personal wealth from business liabilities. Your estate planning attorney can help you with this or provide referrals to qualified business law attorneys who can do that for you. 

Hefty or unnecessary taxation

Taxes take their toll on larger estates or on more significant assets (like the inheritance of a primary or a vacation home). There is nothing that can be done to protect your estate from unnecessary taxation after the fact, so proactive estate planning—including asset-guarding tax strategies—is key.

Spendthrift spouses, children, or other beneficiaries

Are you worried that everything you’ve worked so hard for—or that is a legacy inheritance from your loved ones—will be squandered by a spendthrift child, spouse, or other beneficiary? Your estate planning attorney can help with that, which can include a spendthrift trust that regulates how much money can be allocated to the heir in any given year.

Other threats to an estate plan can arise, but implementing asset protection is a powerful step to safeguarding your intentions.

Implementing Asset Protection: 7 Examples of Strategies Used in Estate Plans

Here are some of the strategies used by estate planning attorneys to protect our clients’ assets. Again, these strategies are personal and customized to each client’s situation, so meeting with an estate planning attorney is the only way to know which ones make the most sense for you and your family.

Prenuptial agreements

If you have a significant estate and plan to get married, speak to your attorney about the benefits of a prenuptial agreement. The day you get married in California, everything you make and every asset you attain—aside from personal inheritances—is considered community property.

A prenuptial agreement can provide a different set of rules within that community property agreement, particularly if you earn significantly more than your partner or are marrying someone who chooses to live a more extravagant lifestyle than you do. Prenuptial agreements can also help to smooth the waters if you are getting remarried and children are involved.

Irrevocable trusts (asset protection trust)

Establishing an irrevocable trust is a final decision. Irrevocable means just that: once you establish an irrevocable trust, you cannot change it in any way. These are used in various ways to meet our clients’ needs, but sometimes it can be as simple as ensuring an adult child with special needs is financially taken care of, no matter what.

Making specific choices about retirement accounts and other financial decisions

Some retirement accounts are protected (exempted) from creditors. The same is true for specific life insurance policies, long-term care policies, and some annuities. By making savvy choices about the types of retirement accounts you select, or the insurance and annuities you invest in, you may protect that portion of your assets. 

Retitling property and other assets

Like irrevocable trusts, you need to be very careful before changing or transferring property/asset titles for asset protection purposes. Once that person’s name is on the title, they are the legal owner, so it must be someone you trust implicitly. Alternatively, consider retitling it to two people, so there is a bit of “checks and balances” at work. 

Homestead exemptions

California automatically extends homestead exemptions for a portion of the property’s equity for primary residences. This exemption protects your property from creditors while you’re alive and can protect your spouse/whoever is on the title with you from creditors after you die. The amount of equity included in California’s homestead exemption laws varies from county to county.

Transferring assets into your business

Above, we talked about protecting personal assets from your business assets. However, in some cases, we recommend doing the opposite and using your business LLC or FLP (family limited partnership) to protect personal assets. By transferring personal assets to an LLC or FLP, they are legally separate from your family’s estate.

Being adequately insured

Having adequate insurance is another way to protect your assets. Just as you should revisit your estate plan every year or so to ensure it’s current, insurance policies are worthy of annual reviews with a trusted agent to ensure you have adequate coverage for your assets and any potential risk.

Tseng Law Firm Provides Customized Asset Protection For Clients & Their Families

Are you interested in learning more about how to implement adequate asset protection strategies into your estate planning process? Schedule a consultation with Tseng Law Firm. We’ll walk you through the estate planning process with a highly personalized approach, ensuring that our results align with your personal outlook on family, money, health, and values.

Challenging a will is very complex and requires a probate attorney’s representation. The process is time-consuming, costly, and emotionally draining, so contesting a will is only recommended when you are absolutely sure your situation warrants all that is required to contest a will in California.

Wills are legally binding documents. And, because the will doesn’t go into effect until the testator (person creating the will) has died, probate courts are exceptionally conservative regarding changing the original testator’s (now decedent) stated intentions. 

Contesting a Will in California: Timing, Grounds, & Process

The first step in contesting a will is to hire a probate litigation attorney to review your case and provide recommendations for moving forward. From there, they will determine whether you have grounds to challenge the will and are acting within the legal time frame, and will facilitate the process to ensure your case moves forward. 

Timing is essential

Probate courts hold strict time limits. Once the probate process begins, the public has 120 days to contest or challenge the will. After that time, courts will rarely honor a challenge.

Once you file the paperwork to contest the will and all relevant parties have been notified (more on that below), the probate process freezes. In most cases, probate disputes are settled within six to 12 months. In rare cases, with more complex estate plans, it can take longer. 

Grounds for challenging a will

There are five different grounds, or reasons, a will can be contested in court. In each case, the court demands clear and convincing evidence to change the will or estate plans, which can be difficult to obtain. 

Lack of mental capacity

Being of sound mind enough to make decisions that align with your wishes is the first set of criteria for creating a legal will, trust, and other estate plans. This is why it’s so essential to create a will while you are still mentally healthy and able to do so or immediately after receiving an early diagnosis of Alzheimer’s, dementia, or other health conditions that can cause dementia down the road. In the latter case, you may want your physician or neurologist to be part of the witnessing process so there is clear evidence they feel you are still of sound mind to make those types of decisions.

Evidence that suggests you were not of sound mind or lacked decision-making faculties increases the risk of your will being contested or challenged. 

Undue influence of another (or others)

This second ground, being under the undue influence of another person (or persons), is also a legitimate reason to contest a will. This means that someone coerced or pressured the person to create their will. In some cases, this could be related to elder abuse. However, it can also just be the actions of a very selfish, bad-intentioned person who wants things to be done their way. 

Undue influence is most often related to a relationship with an imbalance of power, and the manipulator is typically a new spouse, spendthrift child, caregiver, or other close family member. Undue influence from another may also be connected to the testator’s diminishing mental capacity, so those two things may go hand in hand.

Fraudulent activity

In some cases, it may come to light that the will put through probate was fraudulent and was pushed through probate in the hopes it would move through without notice and within the 120-day timeframe. It can also mean that a will was created by a fraudster with a forced signature by the testator, which makes the will null and void.

This can be a very hard one to prove, so expert representation is critical to ensure you have access to highly qualified and skilled analysts who can help to demonstrate the will is fraudulent. 

Improper execution

This can be one of the most heartbreaking ways to have your intentions successfully challenged by another person, and is also a powerful example of why DIY estate planning puts you at risk. As with any legal document, there are specific legal requirements and protocols. If the will, trust, or estate plans aren’t executed to the letter of the law, they are at risk of being challenged or contested. 

Some of the most common “mistakes” leading to improper execution include not having the document(s) signed by witnesses, using an improper witness (a minor, someone without adequate mental capacity, a person with a financial interest in the outcome, someone who wasn’t physically present when the testator signed the will, etc.). So, even if you consider your will to be exactly as you intended, it can be contested if the witnesses (or lack thereof) are called into question. 

The wrong will was entered into probate

It’s not uncommon for people to revisit and revise estate plans regularly. In fact, we recommend this to ensure a client’s estate plans reflect their current wishes and implement the latest strategic tax benefits. However, if they don’t let others know the will has been revised, an outdated will may find its way to probate.

Estate plans should be as private as you want them to be, and there’s no reason to share information with heirs and beneficiaries if that makes you uncomfortable. However, trustees/executors (or a single, trusted family member/friend) should always know when there’s been a change and have access to the most current will/estate plan to prevent an old will from having to be contested.

In most cases, the most recent and properly executed will is the one the probate court will honor – unless other factors lead them to use intestate succession laws instead. 

Process required to contest a will

First, you must qualify to contest the will or estate plan legally. That means a person must have a direct financial interest in the will/estate plan. In most cases, the only people or parties who can challenge a will are:

• Beneficiaries named in the will (or who were named in a former will). 
• Any heirs that fall under California’s intestate succession laws.
• Creditors (lenders, credit card companies, etc.) who are owed money by the decedent.

If you have a legal right to contest the will:

• Hire a probate attorney. The probate process for contesting a will is exceptionally complicated without a sound understanding of California probate law. We highly recommend consulting with a probate attorney before pursuing it independently.
• Serve legal notice to all involved parties. You must also legally serve any parties interested in the will, including trustees, all heirs, and beneficiaries.
• Start gathering evidence. This is called the discovery process and is your chance to gather all of the firm, convincing evidence available to convince the court to vary from the will’s instructions. This can be very challenging, especially when you’re trying to access things like HIPAA-protected medical records or professional clinical testimony pertaining to mental capacity.
• Mediation/trial. Whenever possible, we highly recommend using mediation over a courtroom trial. Mediation can be far less time, money, and energy consuming when compared with the expenses and emotional fatigue inherent in the trial scenario.
• Court decision. After all of the information is gathered and presented, a probate judge will provide the final decision, which will be to uphold the current will, honor a more recent will, amend or adjust the final inheritances/bequeaths, or scrap the will altogether and move forward with distributions based on intestate succession laws.

Tseng Law Firm Can Help You Learn More About Contesting A Will in California

Are you interested in challenging a will, or are you involved in a case where a will is or might be challenged? Schedule a consultation with Tseng Law Firm, and we’ll tell you everything you want to know. We’ll also provide you with best practice steps for moving forward.

Complex and intense emotions around death, dying, and finances are the reasons why so many people avoid estate planning. However, avoiding emotions and thereby procrastinating around one of the most important steps you can take to protect your loved ones doesn’t make the feelings go away. 

When our clients finally embark on the estate planning path, they frequently exclaim how relieved they are and what powerful peace of mind they receive from having their estate plans in order.

The Most Common Emotions That Block Estate Planning

Here are some common emotions or internal conflicts that block people from moving forward with estate plans.

Inability to talk about death or think about death

Very few people are actually death-phobic, but many people are death-avoidant. They don’t want to think about dying, or they remain detached from the reality that they don’t have control over their death or when and how it will happen. The idea of dying becomes a fantasy realm where people know they’re going to die “someday” and feel they have endless time to prepare for that.

Unfortunately, nobody has control over when and how they die, so beginning to open to the reality of your death (gently) can help you also realize how important it is to begin planning for that.

• Helpful Tip: Remember that estate plans aren’t just about death. The process is also designed to ensure your decisions are carried out (medically, financially, legally, etc.) if you cannot make your own decisions (incapacitation). For example, if you were seriously injured but recovered from a car accident, you still need certain documents in place to help others make the right medical decisions for you until you are responsive or recovered.
• Simple steps: Complete your Advance Medical Directive, a powerful first step in outlining your values, medical treatment/care preferences, and other related wishes. If you already have one in place, revisit it to ensure it still reflects your preferences, think about any other end-of-life instructions or plans you’d like others to know about, and file them with your Advanced Medical Directive.

Deep grief around not being alive for loved ones

One of the reasons we struggle to accept the idea of death is that we worry about our loved ones. The irony is that your loved ones – especially children – are far more at risk if you haven’t prepared for your family’s future in the event of your death or a life-altering injury/illness.

Imagine what it would be like for your children if you and your spouse/partner were killed or incapacitated in the same accident. Or think about what it would feel like for your spouse if something happened to you and they had to tackle all of the documents associated with estate planning while also having to field the deep grief associated with your loss. If you are 65+, not having estate plans in place means putting your heirs and beneficiaries in the horrible position of navigating the probate process, which can take a tremendous amount of time, money, and energy. 

• Helpful Tip: Put yourself in your loved one’s shoes and imagine all they would have to do if you died without an estate plan. Where would the children live? What about pet care? Do you have a small business that needs to be dissolved or sold?
• Simple Steps: Complete legal guardianship plans for minor children. Ensure that the Pay On Death (POD) beneficiary designation(s) are filled out for all your financial accounts (checking, savings, investments, retirement accounts, etc.). In most cases, you can do this online. If you can’t find the correct location, contact the financial institution, and they will help you. This one step is invaluable for ensuring financial accounts are divided how you want them to be, without having to make a will or trust (yet).

Complicated emotions around family dynamics

Another emotional block can be the range of complicated emotions surrounding family dynamics. Some clients have no problem with facing their own death, but they do struggle to wade through how they want to distribute their assets to their children or other heirs and desired beneficiaries.

Things that impact this emotional challenge presented by estate planning include:

• Having different opinions from your spouse (or other family members) about who should inherit what or who should serve essential roles like the POA, healthcare proxy, guardians for minor children, etc. 
• Blended families.
• Having an estranged relationship with a close family member (remember that with no estate plan in place, that person will likely inherit a percentage of your estate according to California’s intestate succession laws).
• A child or heir is notoriously irresponsible with money (you can create a spendthrift trust).
• Wanting to create different financial bequests based on your relationship, closeness, or gratitude for a particular family member or friend who isn’t a typical “heir” and worrying about how that will make your children or other heirs feel.

Helpful Tip: Take some time to write about what you’re most worried about and why it’s stopping you from creating your estate plan. You can begin to untangle the thoughts or emotions around the blocks by making bullet points around your top concerns. It may help you see more clearly how you want to move forward.

Simple Step: Instead of having a family conversation about estate plans, think about having one with a trusted friend, spiritual leader, or therapist. Sometimes, speaking things out loud helps to relieve the pressure and prevents them from spinning endlessly in your head. You can also schedule a single session with an estate planning attorney who can provide guidance or give examples of how other clients have handled similar emotions or complexities.

Tseng Facilitates Clients Through The Emotional Complexities Tied To Estate Planning

Are you (and your partner) finding it challenging to navigate the complex or emotional aspects of estate planning? Tseng Law Firm is a boutique Bay Area estate planning firm. We work closely with our clients, creating step-by-step estate plans personalized to their values, goals, and decisions. 

We understand that creating estate planning documents is tender ground and can bring up strong emotions. We’re here to support you every step along the way. Contact us to schedule a no-obligation discovery session, (510) 835-3090, and learn more about our client-centric process.

Have you included a safe deposit box reservation in your estate planning process? Safe deposits are an undervalued tool in the estate planning toolkit. 

In addition to housing valuable and often irreplaceable assets or documents in one place, safe deposits offer far more secure and indestructible benefits than home safes.

Make a Safe Deposit Box Part of Your Estate Plan

This is especially true for Californians, who have experienced record numbers of devastating fires over the past decade. Unfortunately, many of our Northern California clients learned that their home safes were not as fire-safe or resilient as expected, which meant the loss of irreplaceable or hard-to-replace valuables and documents.

What is a safe deposit box?

Safe deposit boxes are locked containers stored in bank and credit union vaults. Clients pay a monthly or annual fee for their use and can choose varying levels of insurance based on the box’s contents. 

There are several benefits to storing relevant assets, possessions, or documents in a safe deposit:

• More secure. Because they are located in a bank vault, they are extremely secure. In order to access your box, authorized users must show legal identification to a bank teller, after which you are escorted to the bank vault, which has a dedicated area for safe deposit boxes. Even most bank tellers do not have clearance to access the vault or safe deposit area. 
• Relative indestructibility. Nothing is 100% indestructible. However, bank vaults are exponentially stronger and more fire/water resistant than the vast majority of home safes. They are also far less affected by seismic activity due to their construction. Even when the bank burns down or a major earthquake strikes, the vault’s contents are protected.
• Burglar-resistant. While a home safe is at risk from burglars, who can be very sophisticated at cracking safes, safe deposit boxes in banks are rarely targets of theft or robbery. According to SQN Banking Systems, home safes are 250 times more likely to be robbed than safe deposit boxes.
• It is customizable to your needs and budget. Small safe deposit boxes, usually around 3 x 5 inches, can cost anywhere from $10 to $60 per year, depending on the bank and the vault security. The sizes and costs go up from there. But this is a very modest fee to pay for the level of protection you gain. 

Items worth storing in a safe deposit box

Here are some of the most essential items we recommend storing in a safe deposit box rather than in your home.

Documents that are hard to replace

Nowadays, you can request new copies of certain legal documents, but many take six weeks or more to replace. This can be a tremendous hassle in an emergency, such as a fire or flood.

We recommend making copies of important, original documents and storing them in your home safe. Then, the originals can be stored in the safe deposit box.

• Birth certificates
• Marriage certificates
• Divorce/child custody agreements.
• Legal documents.
• Death certificates.
• Car titles.
• Property deeds.
• Etc.

Certain valuable assets

You may also have small assets that are valuable but that you don’t access often. These can include things like:

• Paper bonds and stock certificates (much of this is available digitally now, but companies that issued paper stocks in the past will want those back when you or your beneficiaries cash in). 
• Jewelry or small heirloom pieces.
• Gold or silver bullion.
• Keys to a home safe, if you want a double layer of protection.
• Rare or valuable small collectibles.

What NOT to store in a safe deposit box

Because safe deposits must be accessed through the bank, the contents are only accessible during regular banking hours. For this reason, you should never store anything you access regularly or may need at a moment’s notice.

For example, a safe deposit should never be used to store:

• Driver’s licenses.
• Social security cards.
• Passports.
• Cash.
• Vaccination records.
• Advance medical directive or any end-of-life planning documents.
• Original will, trust, or POA (power of attorney) documents.

It can seem like a safe deposit box is the safest place for some of these. However, there are times when these documents are needed ASAP, especially in an emergency. If the need arises outside of banking hours or in the midst of a natural disaster, you want to have immediate access to the items listed above.

Be very mindful of who has access to your safe deposit box

Just as you should be mindful of who has control of your medical choices, who you name as the trustee/executor of your estate, or trust as a POA, your safe deposit box should be equally protected. 

If you’ve granted access to all of your adult children and given them keys, but one is known for having a troubled past or is prone to addiction-fueled theft or irresponsible spending, the contents are at risk. While your safe deposit insurance policy covers the box’s contents in the case of a natural disaster or bank-related incident, it will not cover any contents stolen or misused by someone who had legitimate access.

• Keep safe deposit information and keys in a secure home safe.
• Always maintain safe deposit box insurance (this may or may not be offered by your bank, although they’ll have referrals). 
• Let key people know you have a safe deposit box and where, so heirs/beneficiaries know to pursue that if it was left out of your estate planning documents.

Discuss safe deposit boxes & estate plan strategies with Tseng Law

Tseng Law Firm can help you determine whether a safety deposit box should be part of your estate planning toolkit. Schedule a consultation to begin creating – or modifying – a comprehensive estate plan personalized to your present and long-term goals. Contact us to schedule a consultation.