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Grass Valley, Nevada City, Lake Wildwood, Penn Valley and Alta Sierra Residents – Did You Know?

If you are a resident of Grass Valley, Nevada City, Lake Wildwood, Penn Valley or Alta Sierra, you now have more choices when selecting your Estate Planning attorney. The areas in and around Grass Valley and Nevada City already have living trust attorney’s in town, but just a short drive down Highway 49, in beautiful, historic Auburn, you will find CunninghamLegal. For those who are not familiar with CunninghamLegal, we are The Living Trust Lawyers, have been in business over 20 years and have handled thousands of living trusts and trust administrations.

That’s what we do. Estate Planning, Living Trusts and Trust Administration. In fact, we even have two California Bar Board Certified Specialist attorneys, one attorney with an advanced LL.M. degree and another attorney who will be Board Certified soon; all in our Auburn office to serve you and your families.

Our current clients from Grass Valley, Nevada City, Lake Wildwood, Penn Valley and Alta Sierra love the small town feel of their cities, but at the same time, they recognize that they don’t want people in town to know their business. That’s why they head to Auburn.

If you are the kind of person who values privacy and expects a fantastic client experience give us a call for a free, no obligation consultation. We’ll even review your existing trust for free.

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Two Common Mistakes with Trusts

CunninghamLegal – The Living Trust Lawyers

This is a great article from the American Academy of Estate Planning Attorneys. The writer, Steve Harnett, J.D., LL.M., does a wonderful job of boiling it down to the essential facts. You can find the article here: Two Common Mistakes with Trusts

This is a copy of the entire article from the link referenced above:

Trusts are incredibly useful tools. But, like other useful tools, they do not fit every circumstance. They must be used appropriately. For example, a hammer is an exceptional tool to use when looking to drive a nail into a wall. But, if you hit the nail with a glancing blow, the nail will bend and you’ll end up with a difficult situation. Here are a couple common errors with the use of trusts, and how they could be avoided.

The first mistake with the use of trusts is not using the right type of trust. There are many different types of trusts. By far the most common type of trust is a Revocable Living Trust, often called a “RLT.” A RLT is a great solution for most situations. It can provide for management of your assets during incapacity, avoids probate at death, etc. But, it may not be the right solution for every situation. For example, if someone is looking to qualify for Medicaid in the future, the assets in a RLT will be considered available resources, just as if those assets were owned outright. A special irrevocable trust could be used if one wished to qualify for Medicaid. Such a Medicaid trust could limit the transferor’s rights in the assets to income only, or the transferor might not be a beneficiary of the Medicaid trust at all. While a Medicaid trust is not the right solution for everyone, it can remove the assets from consideration for Medicaid and allow the transferor to qualify for Medicaid, if the transfer is made far enough in advance of the Medicaid application. Whether you are the attorney or the client, consider what type of trust is appropriate. Each type of trust has its strength. The key is choosing the right type of trust for the situation.

The second mistake with the use of trusts is not funding the trust properly. A RLT is a great tool, but only if it is funded. If a RLT is unfunded, the RLT may just be a worthless piece of paper. If there is a Pour-Over Will, which transfers the assets to the RLT upon death, the assets would be subject to probate and only then would be distributed according to the terms of the RLT. But, if there is no Will, the unfunded assets would pass pursuant to the one-size-fits-all system enacted by the legislature of the state of residence, the system known as “intestacy.” An RLT should be funded appropriately to maximize its usefulness during incapacity (to avoid needing a conservatorship) and death (to avoid a probate).

Source: https://www.aaepa.com


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Estate Planning. It’s Not for Everybody. So Who’s It For?

CunninghamLegal – The Living Trust Lawyers

“Estate Planning” is a general phrase that most people associate with planning for the end of one’s life. While that basic definition is a good place to start, estate planning goes far beyond just planning for the distribution of assets upon death. It also includes planning for periods of incapacity, healthcare decision making, Medi-Cal planning, and more.

Despite its importance, not everyone has an estate plan. Since not everybody has an estate plan, it can be reasoned that estate planning is not for everybody. If it’s not for everybody, who is it for?

If you’re the type of person who prepares before leaving town, estate planning is for you.

Most people would not dream of taking a vacation of any duration without making arrangements for their responsibilities and what they hold dear. Bill paying, pet care, home security, giving someone the power to make decisions, etc. are all topics that cross our minds when going away for a week or more. Estate planning is a process through which a person can, in a similar but formalized manner, prepare for life’s unplanned events.

During a period of incapacity, an estate plan allows a person to select who will act on their behalf, how their assets will be controlled and who will participate in medical decision making. Upon passing away, an estate plan allows a person to direct important outcomes, such as: guardianship of minor children, who will care for pets, and distribution of assets. The same foresight that people apply prior to travel can be formalized in an estate plan to thoroughly prepare for whatever lies ahead.

If you’re the type of person who likes to have control over your assets, estate planning is for you.

It has been said that even those without an estate plan, actually do have an estate plan. The problem with the default plan is that it is provided by the government through statutes. A person without their own estate plan who becomes incapacitated is likely to be the subject of a court-ordered conservatorship. A person who passes away without their own estate plan will have their assets administered through the statutory “one-size-fits-all” distribution scheme under the oversight of the probate court.

Few people would consciously invite the government to make such important decisions on their behalf. Living trusts, pour-over wills, powers of attorney, and advanced healthcare directives allow a person to create a unique plan that prepares for their possible incapacity and eventual death based upon their particular circumstances without governmental interference.

If you’re the type of person who wants your financial legacy to be protected from taxes, estate planning is for you.

Tax consequences cause most people to get professional advice, prior to buying, selling, or gifting major assets. The same approach should be taken when considering the transfer of assets upon death.

Estate planning can prevent a person’s financial legacy from being reduced due to estate taxes, generation-skipping taxes and capital gains taxes. What may sound like a good idea (“I’m putting my children on the title to my house now, just in case something happens . . . ”) could cause a tax burden that an estate plan could have prevented.


Estate planning allows a person to create a unique plan to control their assets during their life, through periods of incapacity, and asset distribution after their death. Most people make a plan regarding their assets when just leaving town for a few days. Likewise, most people would rather not have the government control their assets and decision making upon incapacity or death and most people would not want to create a large tax bill simply due to lack of planning, or poor planning. Therefore, upon reflection, most people are likely to determine that estate planning is for them.

By: Doug Reeve. Doug can be contacted in our Camarillo office at (805) 484-2769. Doug’s profile is also found at: Doug Reeve

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Incapacity – Snow White and the Seven Steps

CunninghamLegal – The Living Trust Lawyers

Incapacity is generally defined as lacking the ability to make decisions for oneself. This can occur due to a mental impairment or a physical disability or illness, which prevents a person from having the ability to communicate their reasonable decisions to others. Like most people, Snow White did not know that she would become incapacitated. However, she did understand that proper estate planning doesn’t merely focus on transferring assets upon a person’s death. She knew that an estate plan should also prepare for the possibility that a person may become incapacitated and provide for control of assets and guidance for health care decisions during that time.

Snow White had been warned that the evil queen was out to get her. Despite the warning, she still took a bite of a poisonous (and possibly non-organic) apple. That one bite led to Snow White’s incapacity. She lay unconscious in the forest surrounded by non-CPR certified dwarves, while her real property and financial accounts seemingly had no guidance and medical professionals feared that there was no one who could speak on Snow White’s behalf.

Fortunately, Snow White had a thorough estate plan and she had taken the proper steps to ensure that during her period of incapacity, she didn’t lose control of her assets or medical decisions. The steps she followed were to:

1) Have a Revocable Living Trust: Snow White visited a qualified estate planning attorney who drafted a Revocable Living Trust as the cornerstone of her estate plan. The person she selected as her successor trustee will be guided by the provisions of the trust during Snow White’s period of incapacity.

2) Have a Durable Power of Attorney: A durable power of attorney allows for a person to act as the agent, or attorney-in-fact, on behalf of a person who is incapacitated. Snow White named the successor trustee of her trust to be her attorney-in-fact, thus this person has the power to manage assets that are inside or outside of the trust.

3) Decide When the Durable Power of Attorney Will Be Effective: The durable power of attorney can be effective immediately, upon the signing of an authorization by a person who still has capacity, or upon the occurrence of an event that causes a person’s incapacity. Snow White preferred that her durable power of attorney be effective immediately upon the signing of her estate plan, which means that her attorney-in-fact could act in her best interest anytime thereafter.

4) Create a List of Assets, Obligations and Accounts to Guide Your Successor Trustee and Your Attorney-in-Fact: It can be daunting to assume responsibility for another person’s assets and finances. It is recommended that you keep a current list of assets, obligations, and accounts to allow the people that you have nominated to seamlessly act on your behalf.

5) Have an Advance Health Care Directive: Also referred to as the “medical-power-of-attorney”, this document allows a person to be named as the health care agent and empowers them to make decisions on behalf of an incapacitated person.

6) Thoughtfully Select Who is Best Suited to Make Medical Decisions: It is important to select a health care agent who is comfortable speaking with medical professionals and advocating on behalf of the incapacitated person. Snow White selected the dwarf named Doc as her health care agent. His name indicates that he has a medical background and therefore would be comfortable discussing possible treatments and procedures with Snow White’s doctors.

7) Name People to Receive Medical Information (HIPAA Authorization): The Health Insurance Portability and Accountability Act requires that information relating to a person’s medical condition only be released to named “HIPAA agents.” Although Snow White wanted only one health care agent to make decisions for her, she authorized a handful of dwarves and family members to receive information related to her medical condition.

By following the steps listed above, Snow White’s assets were managed during her period of incapacity by people she had previously selected. Additionally, her health care agent was able to discuss and authorize her treatment. The experimental “kiss-by-a-prince” therapy proved successful and Snow White regained her capacity and her ability to control her assets and make her own health-care decisions. And by avoiding poisonous, non-organic apples, she was able to live happily ever after.

By: Doug Reeve. Doug can be contacted in our Camarillo office at (805) 484-2769.

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Estate Tax and Gift Tax Coming to an End?

CunninghamLegal – The Living Trust Lawyers

The year 2017 is bringing changes to the estate and gift tax exemption, the annual exclusion as well as a possible repeal of the estate tax due to President Trump and a Republican majority in Congress.

The estate and gift tax exemption is increasing this year as expected. As a refresher, the estate and gift tax is a tax on the transfer of assets either during life (gift tax) or at death (estate tax). The new exemption amount allows an individual to give away during life or at death $5.49 million without being subject to the tax. A married couple can double their exemption amount with portability, but portability requires the surviving spouse to make the election on a timely filed estate tax return (9 months after their spouse’s death).

The annual gift tax exclusion is still $14,000. The annual gift tax exclusion is the amount of money you can give away without being subject to gift tax. For example, if an individual gives $16,000 away, then they will have to report $2,000 of the gift ($16,000 minus the gift tax exclusion) on a gift tax return, thus, using a sliver of their $5.49 million of exemption.

President-elect Trump and the Republicans in Congress have their sights on a repeal of the estate tax, so 2017 may bring some historic changes. Interestingly, there has been little to no mention of repealing the gift tax. With the outgoing estate tax, there may be incoming changes for step-up in basis rules. However, like the current estate tax, the step-up in basis rules will have little impact on the vast majority of Americans. Trump’s tax plan will cap a step-up in basis on capital gains up to $10 million held at death (currently unlimited) and disallow contributions of appreciated assets into private charities.

Written by: Stephen M. Wood | Attorney at Law | CunninghamLegal | Camarillo Office | www.cunninghamlegal.com |  (805) 484-2769