Ask an Attorney – Estate Planning

ask-an-attorney-estate-planning-lawyerWhen one person asks an attorney a question, there are hundreds, even thousands more people who have that exact same question in their head. That is why my blog features an ongoing series of posts that answers frequently asked questions as they arise. Because none of us want to be a burden to our loved ones, in this post looks at very specific things you can do NOW to benefit to your loved ones and in some cases protect them from themselves down the road. Grief can be a difficult path to walk and taking the time now to identify and clear potential hurdles for your loved ones, is a lasting and compassionate gift.

Remember… Knowledge is Power! Feel free to share.

Quick Note: Because every situation is different, the following should be considered “general information.” It is not meant to apply to your specific situation. Please seek the advice of counsel.


Would You Rather Be a Benefit or a Burden?

QUESTION: After someone dies what is the greatest area of contention?

ANSWER: Believe it or not, the most common area of disagreement and fighting among family members is not about how the estate is to be divided, but about who gets which articles of tangible personal property – the household furniture and decor!

TIP: A great way to side step this issue is for the decedent (before departing the realm of the living) to write a “Letter of Instruction” detailing who gets what.  This may prevent a fight about that Lladro collection or the quilt sewn by Great Aunt Bertha. It may seem like overkill, however, it is not. Even the cool, calm and collected family members get emotional. Sometimes the emotion comes out sideways and people try and exert control as a way to deal with the loss and it can get rather twisted. Think through this now and ease their burden later.

START HERE: A great way to start is to ask each of your important family members and dear friends, “If you could have ONE memento, keepsake or treasure from my estate, from which THREE items would you like to choose?” This way you make sure that each person receives at least one or two of the things they treasure the most. It may turn out to be possessions you would have never guessed! Once the articles that matter most to each person are distributed in a fair way, you can easily move along and divide the big items, valuables, important furniture, decor and other tangibles that could become an issue. The idea is to create a detailed list of these items to be included as part of a Letter of Instruction – more on that to follow. Please let me know if you need help with this, otherwise it is something you can easily get a running start yourself – even at 2am in your jammies!


QUESTION: I have named my girls to act as co-Trustees because they do not get along and I do not want one to feel left out if I name the other.

ANSWER: In my experience, this is the way to ensure even GREATER conflict after you pass away.  Remember to weigh the importance of your girls having at least the possibility of an improved relationship over time. If they don’t get along now, things are bound to get more contentious if they are forced to work together at a time when emotions run high and reason is displaced by grief.

Please consider either naming them one after the other (perhaps by age), or if you really anticipate conflict, you may want to name a private professional fiduciary.  Professional fiduciaries are licensed by the State of California to handle both money and personal decisions either for an incapacitated individual or for a decedent’s estate. To locate a professional fiduciary visit their website at

Going back to the first question in this post, find out what items are important to your daughters and see to it that each receives SOME of what is important to her – then divide the rest item by item. Doing this and planning for a professional fiduciary may give your girls the best chance at forming a closer bond down the road. You will at least have peace of mind knowing you have done all you can do.


QUESTION: Diane, we have an estate plan but it was done several years ago when we lived in Seattle and our children were little. My partner and I need our documents reviewed to see if they are still in order or if things need changed now that we live in CA. We plan to stay here even after the kids are grown. Can you do that for us?

ANSWER: Yes, and smart thinking! It is always good to review documents in a situation like yours. In your case you have a couple good reasons to do this now: 1) in the years since you first drafted your estate plan, things may have changed enough to warrant an update, and so it’s a good idea to take a look with fresh eyes; 2) yes, especially if you plan to make California your home, you are smart to realize that laws differ from state to state.

I am happy to take a look at your documents and offer a free, half-hour consultation for new clients. It’s a good way for you to get initial questions answered and see if working with me would be a good fit for the two of you. All you need to do is download the certificate from my website and call 408-376-2756 or email the office to set an appointment at your convenience.


QUESTION: What exactly is a Letter of Instruction? Is there a form somewhere?

ANSWER: My sample Letter of instruction simply lists the types of items that a trustee or Executor would like to know. Think of it as a way of getting all of those small bits of information (that are located solely in your head and nowhere else) to those who might need them.


Letter of Instruction – Start with the Following List

  1. Who to notify of your death
  2. What Funeral arranges have you made or would you like to have made
  3. Location of personal papers
  4. Location or original estate planning documents
  5. List of current assets
  6. List of credit cards and the phone number to cancel
  7. Location of safe deposit box, the key and a list of contents
  8. List of specific items of tangible personal property and the beneficiary
  9. Location of homeowner records
  10. List all insurance on life, auto, home, medical, credit insurance and location of documents
  11. Location of vehicle registration
  12. Location of the income tax returns for the past five years
  13. List loans and full information on the terms, payments, collateral, etc.
  14. List all debts someone owes to you
  15. List all possible sources of benefits
  16. List of persons to whom you send the Letter of Instruction

Please feel free to add any other information that you think the trustee or executor will need.

IMPORTANT NOTE: Please remember, in order for this to be a legally binding document, it is best to work with an attorney that specializes in Trusts and Estates. The things we know will benefit you, your estate, and your family down the road. In the meantime, this will give you a great jump start!

TIP: If it seems like too much to do on your own, buddy up with a friend and hold each other accountable to getting it done. If you want it to get it all done now, then by all means use the free consultation certificate to get started!


Ask an Attorney – Trust and Estate Answers

  • Individuals are Entitled to a Free 30 Minute Legal Consultation – This is good for you, a friend or family member providing you are new to Brown Law Offices. It is a no obligation way for you to get answers to a few of your situation-specific questions.
  • Groups Can Schedule a Talk Followed by a Q & A Session – If you are part of a community group, networking association or other group, why not have your questions answered as part of a larger forum? I am available to speak on a variety of related topics: trusts, wills, titling of real property, and health care decisions/directives, guardianship, conservatorship and medical or financial powers of attorney. Learning about these important topics is something that benefits everyone and once we get rolling, PLENTY of questions arise. I am happy to answer them during an Trust and Estate Planning Talk + Q & A tailored to the interests of your group. Please inquire.

At Brown Law Offices we offer reasonable flat rates for estate planning services.  If you or someone you know could benefit from our services, please feel free to call or email me directly.

To read more Ask an Attorney posts > Click here.

estate_planning_living_trust_preparation_losgatos_Diane M. Brown, Esq.
Working every day to keep my clients out of court!
It’s your money… Let’s keep it that way!
Call 408-364-1234



6 Responses to “Ask an Attorney – Estate Planning”

  1. Lillian Schaeffer March 22, 2016 at 6:54 pm #

    This is some great information, and I appreciate your suggestion to ask every family member which few mementos they would choose. I didn’t realize that the most contention after a death was over things and not the actual estate! With that in mind, I’ll definitely ask my children and their families what they would most like to have after I pass so I can start planning accordingly. Thanks for the great post!

  2. Michael Haslam December 14, 2016 at 7:33 am #


    Nice Post.

    The benefits of a complete estate plan (and the consequences of failing to make one) are immeasurable.

    For parents of minor children, a properly-drafted will ensures your children will be cared for by people you know and trust in the event of your death, not someone chosen by a judge you’ve never met.

    Thanks for providing this information.

    I really appreciate your efforts.

    Keep doing the great work.


    Michael Haslam

  3. Olivia Nelson December 29, 2016 at 10:55 pm #

    I agree that you need to start looking into your estate as soon as possible. I would imagine that the sooner you hire a lawyer to help you out the better in order you can get your affairs. I’m still young but I should probably look into hiring a probate lawyer to help me with a will and things like that.

  4. Frank Delaware February 22, 2017 at 4:10 pm #

    My dad is getting to the point where he wants to be prepared for anything, and we were saying that he should start estate planning. I really like that you say to make a list of all of your debts and who you will notify when you are dead. Since it will be passed on to whoever you list, it would be nice to know that they will be able to handle everything.

  5. Kylie Dotts August 24, 2017 at 2:11 pm #

    It’s interesting how you mentioned that the most argued over part of a will is who gets the articles of property that belong to your loved one. I can see why it would be important to hire an estate planning service to be able to explicitly state in your will that what you have goes to who you want it to go to. You might be able to spare your family from infighting by doing so.

  6. Jenna Hunter May 21, 2018 at 10:44 pm #

    I appreciate your advice on how to write a letter of instruction. Since this is literally all the information that anyone would need in case you passed away, it seems like a vital part of estate planning. As my husband and I get older, I think we should start making documents like this and updating them every once in a while. We should probably also consult with an estate planner to make sure that we take care of our assets and can pass them on to the kids.

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