Practice Areas and Legal Definitions

Probate: 
Probate is the legal process of transferring property following a person's death.  Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of death (typically through a Will); his or her property is collected, certain debts are paid from the estate and the property is distributed accordingly.

Wills:
A Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death.  Wills can also contain instructions regarding the care of minor children, gifts to charity and formation of posthumous trusts.  In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

Will Contest Litigation:
A Will Contest is a type of litigation that challenges the admission of a Will to probate.  Issues that are likely to spur the contesting of a Will include: 

• the testator lacked mental capacity, i.e. was senile, delusional or of unsound mind at the time the documents were created;
• the testator was subjected to fraud, coercion or undue influence during its creation and implementation;
• there are ambiguities in the document or
• the Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

If the Will is thrown out, the court, depending on state law and the specific facts and circumstances may disallow only the part of the Will that was challenged; throw out the entire Will, distributing the property as if the person died without a Will or use the last previous Will.

Trusts:
Trusts are estate-planning tools that can replace or supplement Wills and can also help manage property during life.  A trust manages the distribution of a person's property by transferring its benefits and obligations to different people.  Maintaining assets in a Trust often makes it easier to minimize taxes and leave a larger inheritance.  A Trust is also a way to provide a steady income to the Beneficiary over time (as opposed to distribution in a lump sum), thus reducing the Beneficiary's tax burden, allowing the Trust to grow through investment, and keeping assets free from creditors of the Trust beneficiary.  Trusts can also be established for the benefit of charitable organizations.

Probating Estates:
Estates are categorized as probate or non-probate property.  Probate property is property that is transferred by the provisions of a Will.  Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Estate Planning:
Good estate planning is more than just a simple Will.  It minimizes potential taxes and fees (including Federal and State gift and estate taxes), and sets up contingency planning to make sure wishes regarding health care treatment are followed before and after death.  A good estate plan also coordinates what happens to a home, investments, business, life insurance, employee benefits (such as a 401K plan) and other property in the event of disability or death.

Powers of Attorney:
Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person (the principal) to another (attorney-in-fact or agent).  When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and make legal decisions for the incapacitated person.  One of the ways to avoid government or court intervention and the appointment of a stranger to act as your guardian, is to use a Power of Attorney.  A Power of Attorney is a written document that can be limited in scope, or it can allow one person to give another the full power and authority to represent him or her.  There are two types of Power of Attorneys; one covering assets and one covering health care decisions.

Estate Litigation:
Estate litigation is a legal dispute usually initiated by someone who feels they did not receive all they were entitled to in a Will.  Wills can be challenged if it is suspected that the Will is not legally valid or if the person who was writing the Will was wrongly influenced while creating it.

Conservatorship:
A conservatorship is a court order that a person deemed fully or partially incapable be subject to the legal control of another person.  The conservator is responsible for the assets and finances of an incapacitated person.  Many jurisdictions use the term "guardian of the person" to refer to the same legal principle.  It may be necessary to petition a court to appoint a conservator for persons:

• Who have physical or mental problems that prevent them from managing their own financial affairs;
• Who have no person already legally authorized to assume responsibility for them; and
• Where other kinds of assistance with financial management will not adequately protect them. 

Guardianship:
A guardianship is a legal relationship created by a court between a guardian and his ward, either a minor child or an incapacitated adult.  The guardian has a legal right and duty to care for the ward.  This may involve making personal decisions on his or her behalf, managing property or both.  Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity or disability. 

Courts generally have the power to appoint a guardian for an individual in need of special protection.  There are different types of guardians that can be appointed.  A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian.  A person may also be appointed as a special guardian, having limited powers over the interests of the ward.  A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian ad litem. 

Estate Tax Returns:
The money and property you own when you die (your estate) may be subject to federal estate tax.  Most estates are not subject to the tax.  Only about 2% of all estates are subject to the estate tax.  An estate tax return generally will not be needed unless the estate is worth more than the applicable exclusion amount for the year of death.  The estate tax is technically a tax on the transfer of property to others, generally to children of a decedent. 

Estate taxes are different from, and in addition to, probate expenses and final income taxes owed on income the decedent earned in the year of his or her death.  They also are separate from inheritance taxes that are collected by some states. 

Most states impose their own estate taxes, usually as a "sponge tax" that piggybacks on the federal estate tax.  The federal estate tax allows each estate a tax credit for any state inheritance or estate taxes paid, up to a maximum dollar amount. 

Private Annuities & Charitable Trusts:
In a private annuity trust, an owner transfers property to an irrevocable trust in exchange for a promise to make prescribed payments to the owner for his or her lifetime.  The trust then sells the property to a third party, the proceeds of which are invested to provide the payments promised to the owner.  On death, the remainder of the trust estate typically passes to the heirs of the property owner.  The trustee must be someone other than the property owner. 

A charitable trust is somewhat similar to a private annuity trust, except that the owner transfers property to an irrevocable trust of which one or more charitable organizations will be beneficiaries.  The type of charitable trust most likely to be used is a charitable remainder trust, in which the owner retains an income interest for his or her lifetime.  The property can be sold by the trustee and the proceeds invested to provide the payments to the owner.  On death or after a specified term of years, the remainder of the trust estate passes to one or more designated charitable organizations.  Unlike a private annuity trust, the trustee can be the property owner. 

If you or someone you know needs the skilled legal counsel of an experienced Monterey Estate Planning Attorney, please call John D. Laughton, APLC, today at 866-740-1945, or complete the contact form provided on this site to arrange for your free consultation. 

Professional Profiles

When you have a well-drafted estate plan in place, you will feel secure that your estate passes to whom you want, when you want, and is carried out in the manner you've chosen. You can rest assured that your family won't have to endure the public process and costly matter of probate. Uncle Sam won't be able to take what you've spent a lifetime building. However, you need to be aware of the many options that exist in estate planning and you must choose your attorney wisely.

At John D. Laughton, APLC, we want you to feel confident about the choices you make.  We enjoy the opportunity to team with clients to help guide them on the path toward preserving their family's present and future.  Please call our office to speak one-on-one with an experienced and dedicated Monterey Estate Planning Attorney today.

FIRM ADDRESS: 
John D. Laughton, APLC
215 W. Franklin St., Suite 411
Monterey, CA 93940
Telephone: 866-740-1945

MEMBER OF THE FIRM:

• John D. Laughton
   

Mr. Laughton is an estate planning lawyer in his 28th year of law practice. He became associated with the old firm of Davis & Schroeder in 1978 and became a principal of that firm in 1984. The firm, now called The Law Offices of John D. Laughton, A Professional Law Corporation, is committed to providing personalized legal services in a highly ethical, professional, solution oriented, and cost effective manner. In addition to providing timely and high quality legal services, Mr. Laughton is committed to educating the community about important estate planning issues through public seminars.

EXPERIENCE:
His primary area of practice today is estate planning. Such work includes advice concerning and preparation of Wills and Trusts, and the handling of Probates and Trust Administration. He also consults with clients on business and real estate matters that are often related to such estate planning. Such work includes the formation of and the day-to-day counseling of corporations, sole proprietorships, general partnerships, (family) limited partnerships (FLP's), and limited liability companies (LLC's). Related work includes the acquisition, operation and sale of such businesses, commercial leasing, and the purchase, sale or tax deferred exchange of commercial real estate for such clients.

EDUCATION:
He received his undergraduate degree with Distinction in General Scholarship from the University of California at Berkeley, and his law degree from the University of California, Hastings College of the Law in San Francisco. Mr. Laughton is a member of the California State Bar and the American Bar Association, Sections on Real Property, Estates and Trusts. He is also a member of the American Academy of Estate Planning Attorneys (AAEPA) and The National Academy of Elder Law Attorneys, Inc. (NAELA). Mr. Laughton is admitted to practice before all of the courts of the State of California, including the California Supreme Court and the Ninth Circuit Federal Court, Northern District.

PERSONAL:
Mr. Laughton was appointed to the City of Del Rey Oaks Planning Commission and served between 1985 and 1992. He has served on the Boy Scouts of America, Monterey Bay Area Council Board of Directors for the past 26 years, on the Chartwell School Board of Trustees, and on the All Saints' Episcopal Day School Board of Trustees from 1998 to 2001. He is active in other community affairs and pro bono legal work for non-profit organizations in the community. He served in the U.S. Army, including a tour of Vietnam in 1971-1972. Mr. Laughton is married and the father of four grown children. He enjoys outdoor activities with his wife, Debra, in particular, hiking, mountain biking, sailing, and skiing.

MEMBER OF THE FIRM:

• Kyle A. Krasa
  

Mr. Krasa focuses on estate planning and business law. He advises clients on the preparation of Wills and Trusts and handles Probate and Trust Administration matters. He also assists clients with the formation of corporations, limited partnerships, and limited liability companies as well as the acquisition, operation, and sale of such businesses. Additionally, he helps clients with the negotiation and preparation of commercial leases.

EDUCATION:
Mr. Krasa graduated from Stevenson School in 1997. He then attended Saint Michael’s College in Vermont where he graduated magna cum laude in 2001. He returned to California to study law at the University of California, Davis School of Law, graduating in 2004. He has been practicing law in Monterey County since 2004. He is a member of the California State Bar, the American Bar Association, Section on Real Property, Estates, and Trusts, and the Monterey County Bar Association, Section on Probate. He is also a member of the American Academy of Estate Planning Attorneys (AAEPA). Mr. Krasa is admitted to practice before all of the courts of the State of California, including the California Supreme Court, as well as the Ninth Circuit Federal Court, Northern and Eastern Districts.

PERSONAL:
Mr. Krasa has strong ties to the Monterey area. He was born and raised on the Monterey Peninsula. His grandfather, Karel A. Krasa, taught Czech at the Defense Language Institute. His mother, Joan Y. Krasa, taught at Bay View Elementary School in Monterey for over twenty-five years. His father, Peter G. Krasa, was an administrator with the Monterey Peninsula Unified School District for nearly thirty years. Mr. Krasa attended Pacific Grove schools until transferring to Stevenson School for high school from 1993-1997.

Mr. Krasa serves on the Board of Directors for Meals on Wheels of the Monterey Peninsula. He is married to Amanda L. Krasa, a Water Quality Specialist, with the Monterey County Health Department in Salinas, California.