Decanting is the process in which the trustee of an irrevocable trust takes trust property and transfers it to a newly created trust. This effectively allows the trustee to manage the trust property under new terms because the new trust will not have the same limitations as the old one. Decanting is sometimes necessary, though not all states have specific laws that address it.

Question 2: When is decanting useful?

Decanting is appropriate in several situations. Typically, a trustee will use decanting to fix a problem that exists in the original trust. Though the terms of an irrevocable trusts typically cannot be changed, decanting is one way in which a trustee can effectively change the terms of the trust while still serving the original intentions for which the trust was created. For example, a trustee might use decanting if the trust beneficiary has suddenly become incapacitated or disabled. In order to take advantage of state and federal programs for people with disabilities, the trustee can decant the trust property to allow the beneficiary to qualify for such programs.

Question 3: How does the decanting process work?

Depending on the state in which the trust was formed, the trustee may be able to decant trust property without the consent of the court. However, only a minority of states have decanting laws, and in other states the trustee may need court approval to perform the decanting.

No. Unless you own property jointly, have named your partner as a beneficiary in insurance policy or transfer on death account, or have created a will that leaves property to your partner after you die, your partner will not inherit your possessions after your death. Though the law gives spouses the right to inherit automatically should the other die, it makes no such provisions for cohabiting couples. You’ll have to create a Will or devise another inheritance method if you want to ensure your partner receives property after your death.

Question 2: Will my girlfriend/boyfriend be able to tell my doctor what I want if I get sick?

No. While a spouse usually has legal authority to make medical decisions on behalf of an incapacitated spouse, cohabitating partners do not automatically have this right. If your partner is incapacitated it will be up to a judge to determine who has the right to make medical decisions. However, you can give your partner this right if you create a medical power of attorney or advance directive.

Question 3: Will my girlfriend/boyfriend have the right to care for my children if I am incapacitated?

No. Again, in this situation it will be up to a court to determine who should become the legal guardian of your children. If there is no available parent, the court will likely choose a person related to your children regardless of the relationship between your girlfriend or boyfriend and your children. You can, however, select your partner as your choice of guardian in the event you are incapacitated.

At the time of his death in early April, Mr. Kinkade shared his home with his live-in girlfriend and personal assistant, Amy Pinto-Walsh, even though Mr. Kinkade was still married to Nanette Kinkade, his wife of 30 years. Mr. Kinkade and his wife had been separated, a fact discovered after his death when his girlfriend of the past 18 months disclosed the information during the 9-1-1 call she made reporting the artist’s death.

In that call Ms. Pinto-Walsh stated that Mr. Kinkade had been drinking heavily the day before. Now, Mrs. Kinkade and the Kinkade Family Trust have filed a restraining order against Ms. Pinto-Walsh stating that she has violated her confidentiality agreement by disclosing information about Mr. Kinkade’s activities before his death.

What effect this will have on any potential estate or probate conflict is currently unknown. Though the restraining order against Ms. Pinto-Walsh was never served upon her, the parties have since stated that they have come to an agreement about the dispute. We’ll have to wait to see whether this agreement will last and prevent an estate battle over Mr. Kinkade’s property.

Issue 1: Filing a petition.

You cannot start a probate case until someone has died. Once this happens, the deceased person’s executor or personal representative (as named in the Will) or a close family member such as a spouse or child can open a probate case. That person needs to file a petition with the probate court. The petition is simply the legal document that asks the court to start a new case. This document must contain specific information and be accompanied by other documents, such as an official death certificate, the Will, and any other state required forms.

Issue 2: Knowing where to file.

You usually file the probate petition in the county courthouse where the deceased person lived, but it is permissible in Washington to file in another county for convenience.   You may also have to file an additional probate petition in another state, if the deceased person owned real estate there. This is known as ancillary probate.

If you are a parent with young children, you’ve probably wondered what would happen to your children should something happen to you. The fact is, if you have not created an estate plan, your children may end up in the care of someone you would not approve. However, you can select who will replace you in the parental role by creating legal documents to name a guardian in the event of your death or incapacity. If you do not take this step, the decision about who will take care of your children will be up to a court.

Reason 2: You need someone to manage your finances.

What happens if you are involved in a car accident and suffer injuries that leave you permanently incapacitated? Who will take care of your financial obligations in this situation? Similar to the naming of a guardian for your children, if you have not chosen someone to step in and take care of your finances a court will have to do it for you. On the other hand, by developing an estate plan and filling out a few important documents, you can choose who will manage your finances in the event you are no longer able to.

Reason 3: You have specific medical choices.

Young people often do not create estate plans for the simple reason that they do not believe they will ever need them. While it is true that it is very unlikely you will ever be seriously injured, in the event you are, you have the ability to tell your doctors what kind of medical care you want to receive even if you’re no longer able to communicate. You can do this by creating an advance medical directive that states your choices in detail.

Step 1: Write a living Will.

Unlike a last Will, a living Will is designed to be used while you’re still alive, but are unable to make or communicate healthcare choices.Your living Will states what your preferences are about possible medical treatments. Once created, your physicians and family will have to abide by your decisions as detailed in the document.

Step 2: Have a power of attorney ready.

A power of attorney is an important legal document that will give another person the right to make your decisions for you. In the event you should lose your cognitive ability to make decisions, your power of attorney will pass that authority to the person you have selected. You can give different people different types of authority, such as giving healthcare authority to one person and financial authority to another.

• Will Requirements: A Will must be written and signed by the person making it, known as a testator. Two competent witnesses must also sign the document after they see the testator do so. There is no state that requires any of these signatures to be accompanied by a notary’s seal or be signed in the presence of a licensed notary.

• Notarization: While having a Will notarized will not invalidate it, almost all states allow you to self-prove a Will by having it accompanied by a notarized affidavit. A self-proving will is one that is accompanied by an affidavit signed by the witnesses stating that they witnessed the testator sign the document. These affidavits make it unnecessary for courts to call the witnesses  to testify about the testator’s signature. Though self-proving Wills are not required in any state, they can make the probate process much simpler.

Originally it was thought that only 24,000 people were affected because the hackers downloaded about 24,000 files. However, that number was greatly expanded after the Utah Department of Health learned that each of those files contained up to hundreds of patient names and associated information.

Information security experts say that there is little the individual patient could have done to prevent this breach of information because the data was stolen from a state server. This type of breach mirrors other security problems where large databases hold information on numerous people. Another such breach occurred after hackers stole credit card information from Global Payments, and Atlanta payment processing service. The hackers stole security information on more than 1 million credit card accounts, and there was nothing in individual card user could have done about it.

Utah Medicaid patients affected by the security breach will receive one year of free credit monitoring to protect against potential identify theft.

• Common-Law States: Only 9 states currently allow people to get married through common-law. All other states, with a couple of exceptions, do not recognize common-law marriages as legally valid. However, if you are married in a state that does recognize common-law marriage and then move to a state that does not, your marriage is still valid.

• Common-Law Requirements: In order to be married through common-law you must meet very specific requirements. Though each state has its own terminology, the three requirements are: being of legal age (typically 18), agreeing to become married, and holding yourself out to the public as a married couple.

• Seven-Year Requirement: There is no state that imposes any minimum time requirement for common-law marriage. You can become married through common-law after a day, a year, a decade, or at any other time as long as you meet the requirements. Living together or cohabitating for a certain number of years will not make you common-law married.

Unintended disinheritances can happen for any number of reasons. For example, if you created your last will and testament after the birth of your first child, you may have named that child as your sole inheritor. If you later have a second child and fail to update your will, you may accidentally disinherit the second child. Though this may not be very likely, you can easily account for such an error by changing your will to include broader terminology that will encompass all of your children, or by naming specific gifts for each of your children and updating the will after a new child is born.

Another potential cause for unintended disinheritance is when you have multiple wills or create a will on your own that is later deemed invalid. If, for example, you create one will when you’re single and another after you get married, you should be sure your second Will is drafted properly. If a court finds that your second Will is invalid and you didn’t properly void your first Will, it might use your first Will instead.

Needless to say, regularly updating and reviewing your estate plan will go a long way in preventing any unintended disinheritances. You should make it a habit to review contact your estate planning attorney every year to discuss potential changes you may need to make.