Avoiding probate doesn’t always have to be complicated. You can take simple steps to ensure that certain types of property pass to your heirs without going to probate court. One of the easiest methods is to designate beneficiaries to inherit your bank accounts, retirement accounts, securities, vehicles, and real estate automatically, without probate.

 Payable-on-Death Bank Accounts

Payable-on-death bank accounts offer one of the easiest ways to keep money — even large sums of it — out of probate. All you need to do is fill out a simple form, provided by the bank, naming the person you want to inherit the money in the account at your death.

As long as you are alive, the person you named to inherit the money in a payable-on-death (POD) account has no rights to it. You can spend the money, name a different beneficiary, or close the account.

At your death, the beneficiary just goes to the bank, shows proof of the death and of his or her identity, and collects whatever funds are in the account. The probate court is never involved.

If you and your spouse have a joint account, when the first spouse dies, the funds in the account will probably become the property of the survivor, without probate. If you add a POD designation, it will take effect only when the second spouse dies.

Retirement Accounts

When you open a retirement plan account such as an IRA or 401(k), the forms you fill out will ask you to name a beneficiary for the account. After your death, whatever funds are left in the account will not have to go through probate; the beneficiary you named can claim the money directly from the account custodian. Surviving spouses have more options when it comes to withdrawing the money, than do other beneficiaries.

If you’re single, you’re free to choose whomever you want as the beneficiary. If you’re married, your spouse may have rights to some or all of the money.

  Transfer-on-Death Securities Registration

Almost every state has adopted a law (the Uniform Transfer-on-Death Securities Registration Act) that lets you name someone to inherit your stocks, bonds or brokerage accounts without probate. It works very much like a payable-on-death bank account. When you register your ownership, either with the stockbroker or the company itself, you make a request to take ownership in what’s called “beneficiary form.” When the papers that show your ownership are issued, they will also show the name of your beneficiary.

After you have registered ownership this way, the beneficiary has no rights to the stock as long as you are alive. But after your death, the beneficiary can claim the securities without probate, simply by providing proof of death and some identification to the broker or transfer agent. (A transfer agent is a business that is authorized by a corporation to transfer ownership of its stock from one person to another.)

Transfer-on-Death Registration for Vehicles

Arizona, Arkansas, California, Connecticut, Delaware, Illinois, Indiana, Kansas, Missouri, Nebraska, Nevada, Ohio, Vermont, and Virginia offer car owners the sensible option of naming a beneficiary, right on their certificate of registration, to inherit a vehicle. If you do this, the beneficiary you name has no rights as long as you are alive. You are free to sell or give away the car, or name someone else as the beneficiary.

To name a transfer-on-death beneficiary, you’ll need to fill out the paperwork required by your state’s motor vehicles department.

Transfer-on-Death Deeds for Real Estate

In some states, you can prepare a deed now but have it take effect only at your death. These transfer-on-death deeds must be prepared, signed, notarized and recorded (filed in the county land records office) just like a regular deed. But unlike a regular deed, you can revoke a transfer-on-death deed. The deed must expressly state that it does not take effect until death.

States that allow TOD deeds are Alaska, Arizona, Arkansas, California (effective January 1, 2016), Colorado, District of Columbia, Hawaii, Illinois, Indiana, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

WFB Legal Consulting, Inc.–A BEST ASSET PROTECTION Services Group–Lawyer for Business


A powerful tool for amending or repairing irrevocable trusts is the binding nonjudicial settlement agreement (NJSA). Most irrevocable trusts do not provide for the amending of trust terms except in instances where modification is necessary to comply with the tax code or other specified laws. However, there are two methods for repairing irrevocable trusts which most states recognize; one is decanting and the other is the binding NJSA. (Decanting is discussed specifically in a previous issue of this newsletter)

An NJSA is exactly as it describes: an agreement among “interested persons” to make alterations to an irrevocable trust. Interested persons are generally defined as any person whose consent would be required in order to achieve a binding settlement, were the settlement to be approved by the court.

Depending on state law provisions, the trust terms that may be modified by an NJSA are limited only by the restriction that the modification may not violate any material purpose of the trust, and would be approved by a court if reviewed.

While versatile and powerful tools for modifying irrevocable trusts, NJSAs also contain risks. Estate planning counsel should have a thorough understanding of critical drafting practices to avoid serious and costly consequences.




One of the most valuable estate planning tools for both protecting and maximizing the value of IRA assets is the use of a trust as an IRA beneficiary. Properly structured, an IRA beneficiary trust can allow extended tax deferral benefits by “stretching out” the payments over the beneficiary’s life expectancy.

The IRS “separate share rule” requires that, for purposes of calculating distributable net income (DNI), any trust that has more than one beneficiary and “substantially separate and independent shares of different beneficiaries in the trust shall be treated as separate trusts.”

In the context of an IRA beneficiary trust, the separate share rule also allows an IRA to factor in the ages of each beneficiary of the IRA in making required minimum distributions (RMDs), thus achieving “stretch” treatment.

However, failure to properly structure the IRA trust can lead to unfavorable consequences. The trust document must properly identify the separate shares per beneficiary, or the trust is required to make the RMDs based on the age of the life expectancy of the oldest beneficiary, and will therefore lose the advantage of prolonged tax deferral from stretching out payments as originally planned.




Trustees owe a great responsibility not only to the person who created the trust, but also to the beneficiaries of the trust. In the legal context, this responsibility is referred to as a “duty.” There are several different duties owed by the trustee to the beneficiaries. If the trustee breaches one or more of these duties, the trust beneficiaries may sue the trustee for any damage caused by the breach.

*The Duty of Loyalty

A trustee owes the beneficiaries a duty of absolute loyalty. The duty of loyalty includes the duty to avoid self-dealing and the duty of avoid conflicts of interest. Self-dealing occurs where the trustee uses trust property for a purpose that benefits the trustee rather than the beneficiaries. California does allow a trustee to engage in self-dealing, however, if the person who created the trust or all of the beneficiaries agree to the transaction after the details of the proposed transaction are fully disclosed.

A conflict of interest arises if the trustee is considering dealing with another party in a transaction that may affect the trustee’s ability to properly assess the transaction. For example, if the trustee is allowed to sell trust property and hold the property for the beneficiaries, the trustee would have a conflict of interest if the potential buyer was the trustee’s friend. The main difference between self-dealing and a conflict of interest is that self-dealing benefits the trustee, and a conflict of interest is something that could potentially cloud the trustee’s judgment with respect to the trust.

*The Duty of Prudence

In California, a trustee is obligated to administer the trust property with a level of skill and care that a person of ordinary prudence would exercise if dealing with her own property. This is an objective standard, meaning that it is of no significance as to whether the trustee thought she was acting prudently. For example, if the trust directs the trustee to invest some or all of the trust property, the duty of prudence would require the trustee to investigate investment opportunities such as by conducting research and perhaps consulting with investment experts. The duty of prudence also requires the trustee to spread the risk of loss by diversifying the trust investment, unless it would not be prudent to do so.

*The Duty of Impartiality

The duty of impartiality is designed to prevent the trustee from favoring some beneficiaries over other beneficiaries. The duty commonly arises where the trust directs the trustee to distribute income from trust property to some beneficiaries, and to then distribute the actual trust property after some period of time. In this situation, the beneficiaries entitled to income want the trustee to invest the trust property in risky investments to maximize the accrued interest.

Conversely, the property beneficiaries want the trustee to invest the property in safe investments to protect the principal but produce little income. In this situation, the duty of loyalty may require the trustee to invest the trust property so that it produces a reasonable income while preserving the property for the final beneficiaries.

*The Duty to Collect Trust Property

A trustee is required to collect trust property without unreasonable delay to protect that property. This duty may also require the trustee to examine the trust property to ensure that the collected property is the property specified in the trust document. Collecting and identifying the trust property is also necessary to avoid the risk that the trustee could mistake trust property for his own.



Under California law (which is much more generous to employees than federal law), if you are a non-exempt worker, you are entitled to meal and rest breaks: a 30-minute meal break if you work more than 5 hours in a workday, and 10 minutes breaks for every 4 hours you work. There are other requirements though. If your boss doesn’t comply with break requirements, they are required to pay you one extra hour of regular pay for each day on which a break violation occurred.

 Rest Breaks

  1. If you work at least 3.5 hours in a day, you are entitled to a rest break.
  2. Your boss must give you a rest break of at least 10 consecutive minutes for each 4 hours worked.
  3. Rest breaks must, to the extent possible, be in the middle of each work period.
  4. Rest breaks must be paid.
  5. Your boss may require you to remain on work premises during your rest break.
  6. You cannot be required to work during any required rest break. However, you are free to skip your rest break provided your boss isn’t encouraging or forcing you to do so.

Meal Breaks

  1. If you work over 5 hours in a day, you are entitled to a meal break of at least 30 minutes. However, you can agree with your boss to waive this meal period provided you do not work more than 6 hours in the workday. You can also agree with your boss to an on-duty meal break which counts as time worked and is paid.
  2. If you work over 10 hours in a day, you are entitled to a second meal break of at least 30 minutes. You can agree with your boss to waive the second meal break if you do not work more than 12 hours and you did not waive your first meal break.
  3. Your boss has an affirmative obligation to ensure you are free to take your meal break off work premises.
  4. You cannot be required to work during any required rest break. Moreover, your boss has an affirmative obligation to ensure you are actually relieved of all duty and are not performing any work during meal breaks.

Keep in mind, there are many exceptions to the above for certain industries, such as the healthcare, group home, motion picture, manufacturing, and baking industries.

If your employer is violating your rights to meal and rest breaks, you should contact a lawyer right away. Your claims could be subject to strict filing deadlines. For meal and rest break violations, the filing deadline is usually considered to be 3 years thanks to a recent California Supreme Court decision. [Murphy v Kenneth Cole Productions, 40 Cal.4th 1094 (2007)], but in certain cases, a 1 year filing deadline could also apply.

WFB Legal Consulting, Inc.–A BEST ASSET PROTECTION Services Group–Lawyer for Business


Hiring a high-level employee or executive is a big step for most small businesses. The consequences of making the right hire are much greater with an executive than with most other employees. This hire involves a much bigger financial commitment on your part than hiring rank-and-file employees in terms of salary, benefits, and perhaps even an equity stake in the company. Your hope, of course, is that the experience and expertise the executive brings will result in greater sales and more opportunities for business growth, thus paying for the financial commitment many times over.

Because the stakes of such hires are so high, small business owners should create a formal, written employment contract that dictates the specific terms of your employment agreement with the executive. This will provide protection for both you and the new hire. An employment contract will help ensure, for example, that the executive doesn’t leave your company and take valuable proprietary information to a competitor. And by spelling out the specific conditions under which the executive can and cannot be terminated, the contract provides a higher degree of job security for him or her.

An executive employment contract typically includes, at the very least, the following components:

  • Duration of Employment: In most states, if an employee is hired without an employment contract that stipulates the duration of employment, he or she is considered to be employed “at will.” This basically means that either the employer or employee can terminate the employment for any legal (i.e., nondiscriminatory) reason at any time. By including a specific time duration of employment, the contract gives both sides an “out” if the arrangement isn’t going as expected. Given the higher stakes involved in an executive hire, this is often welcomed by both sides. However, the contract can include an at-will clause stating that the employment term is open-ended if both sides prefer this kind of arrangement.
  • Compensation Details: Compensation packages for executives are often more complicated than those for rank-and-file employees. Not only do they include a base salary but they may include stock options, incentive compensation plans, specially designed retirement plans, and other perks such as a company vehicle or a country club membership. Given this complexity, it’s usually a good idea to put all of this in writing in a formal employment contract. Also include any specific benchmarks or performance levels that must be met for the executive to qualify to receive such compensation if applicable.
  • Severance Package: To attract top executives, you may have to agree to pay them a certain amount of money or equity in the business or provide certain benefits for an extended period of time after they leave the company. The terms of any agreed upon severance package should be spelled out in detail in the employment contract, including the specific circumstances of employment termination that will and will not trigger the severance.
  • Restrictive Covenants: Also known as Non-Compete agreements and Proprietary Rights agreements, these could be your primary protection both against an executive leaving your business and taking proprietary information or trade secrets to one of your competitors, and/or starting a business to compete with yours. Most non-compete agreements dictate that the executive cannot go to work for a competitor or start a competing business within a certain time period (such as one year) after leaving your company. The legalities of defining a “competing” business can get tricky, and courts tend to be unpredictable in how they rule in such cases. Various state laws also affect the outcome of non-compete enforceability. Regardless, including at the very least, restrictive covenants in your employment contract, will make executives think twice before jumping ship and taking proprietary information to a competitor.
Contribution by:  Don Sadler

WFB Legal Consulting, Inc.–A BEST ASSET PROTECTION Services Group–Lawyer for Business


A beneficiary or heir doesn’t automatically get a copy of a trust. Each beneficiary and heir is entitled to notice when a trust settlor dies and/or there is a change of trustee. Once the beneficiary or heir asks, in writing, for a copy of the trust then the trustee must provide a copy of the trust and all of its amendments within sixty days.

Once those sixty days have run, the beneficiary can petition the probate court to compel the trustee to provide a copy of the trust and its amendments. The beneficiary can also ask for attorney’s fees and court costs for having to file the petition. California law does not put any cap on the attorney’s fees and costs. This means the longer the trustee fights to be provided a copy of the trust, the more it will cost the trustee when he or she loses. Whatever amount the court awards for fees and costs is payable by the trustee personally. The trustee can’t use trust funds to pay.

The trust instrument determines the nature and scope of a trustee’s duty to account and report [Prob. Code §§ 16061, 16062]. The trust instrument may expand, restrict, or waive the duty to account and report, subject to certain restrictions. It is important to note that although the trust instrument may waive a trustee’s general duty to account when the trustee is not a disqualified person, a trustee nonetheless may be compelled to account “upon a showing that it is reasonably likely that a material breach of the trust has occurred” [Prob. Code § 16064(a)]. As such, a trustee cannot rely upon exculpatory language in the trust instrument to refuse to account to a beneficiary.

If you have cause for an Elder Abuse claim, you may file a Petition to Remove the trustee and/or ask for an accounting of the Trust. Otherwise, the first task the practitioner must undertake when representing a beneficiary is to review the trust instrument to determine whether the trustee owes a general duty to account or report, as well as the scope of that duty.

WFB Legal Consulting, Inc.–Lawyer for Business


When it comes to understanding trusts, knowing the difference between revocable and irrevocable trusts is crucial. If you ask for a revocable trust and get an irrevocable one, or vice versa, the legal and tax consequences will be significant.

Revocable Living Trusts

A revocable living trust, also known as a revocable trust, living trust or inter vivos trust, is simply a type of trust that can be changed at any time.

In other words, if you have second thoughts about a provision in the trust or change your mind about who should be a beneficiary or trustee of the trust, then you can modify the terms of the trust through what is called a trust amendment. Or, if you decide that you don’t like anything about the trust at all, then you can either revoke the entire agreement or change the entire contents through a trust amendment and restatement.

Since revocable living trusts are so flexible, why aren’t all trusts revocable? Because the downside to a revocable trust is that assets funded into the trust will still be considered your own personal assets for creditor and estate tax purposes. This means that a revocable trust offers no creditor protection if you are sued, all of the trust assets will be considered yours for Medicaid planning purposes, and all assets held in the name of the trust at the time of your death will be subject to both state estate taxes and federal estate taxes and state inheritance taxes.

So why should you use a revocable living trust as part of your estate plan?

  1. To plan for mental disability – Assets held in the name of a Revocable Living Trust at the time a person becomes mentally incapacitated can be managed by their disability trustee instead of by a court-supervised guardian or conservator.
  2. To avoid probate – Assets held in the name of a Revocable Living Trust at the time of a person’s death will pass directly to the beneficiaries named in the trust agreement and outside of the probate process.
  3. To protect the privacy of your property and beneficiaries after you die – By avoiding probate with a revocable living trust, your trust agreement will remain a private document and avoid becoming a public record for all the world to see and read. This will keep the details about your assets and who you have decided to leave your estate to a private family matter. Contrast this with a last will and testament that has been admitted to probate – it becomes a public court record that anyone can see and read.

Irrevocable Trusts

An irrevocable trust is simply a type of trust that can’t be changed after the agreement has been signed, or a revocable trust that by its design becomes irrevocable after the Trustmaker dies or after some other specific point in time.  However, refer to Can an Irrevocable Trust Be Changed? for more information about certain situations in which an irrevocable trust may be changed.

With the typical revocable living trust, it will become irrevocable when the Trust-maker dies and can be designed to break into separate irrevocable trusts for the benefit of a surviving spouse, such as with the use of AB Trusts or ABC Trusts, or into multiple irrevocable lifetime trusts for the benefit of children or other beneficiaries.

Irrevocable trusts can take on many forms and be used to accomplish a variety of estate planning goals:

  • Estate Tax Reduction

Irrevocable trusts, such as irrevocable life insurance trusts, are commonly used to remove the value of property from a person’s estate so that the property can’t be taxed when the person dies. In other words, the person who transfers assets into an irrevocable trust is giving over those assets to the trustee and beneficiaries of the trust so that the person no longer owns the assets. Thus, if the person no longer owns the assets, then they can’t be taxed when the person later dies.

As mentioned above, AB trusts that are created for the benefit of a surviving spouse are irrevocable and, thus, can make full use of the deceased spouse’s exemption from estate taxes through the funding of the B trust with property valued at or below the estate tax exemption. Then, if the value of the deceased spouse’s estate exceeds the estate tax exemption, the A Trust will be funded for the benefit of the surviving spouse and payment of estate taxes will be deferred until after the surviving spouse dies.

ABC trusts can be used by married couples who live in a state that collects a state estate tax and the state estate tax exemption is less than the federal estate tax exemption. For example, in Massachusetts the state estate tax exemption is only $1 million, as compared with the current federal $5.34 million exemption, so in Massachusetts the first $1 million will go into the B Trust, then next $4.34 million will go into the C trust, and anything over $5.34 million will go into the A Trust.

  • Asset Protection

Another common use for an irrevocable trust is to provide asset protection for the Trust-maker and the Trust-maker’s family. This works in the same way that an irrevocable trust can be used to reduce estate taxes – by placing assets into an irrevocable trust, the Trust-maker is giving up complete control over, and access to, the trust assets and, therefore, the trust assets cannot be reached by a creditor of the Trust-maker or an available resource for Medicaid planning. However, the Trust-maker’s family can be the beneficiaries of the irrevocable trust, thereby still providing the family with financial support, but outside of the reach of creditors. There are also irrevocable trusts called self-settled trusts or domestic asset protection trusts that in some states, including Alaska, Delaware, Nevada, and Tennessee, offer creditor protection and allow the Trust-maker to be a trust beneficiary.

In addition, as mentioned above, the various irrevocable trusts that can be created for the benefit of the Trust-maker’s surviving spouse or other beneficiaries after the Trust-maker of a Revocable Living Trust dies can be designed to offer asset protection for the trust beneficiaries.

  • Charitable Estate Planning

Another common use of an irrevocable trust is to accomplish charitable estate planning, such as through a charitable remainder trust or a charitable lead trust. If the Trust-maker makes the initial transfer of assets into a charitable trust while still alive, then the Trust-maker will receive a charitable income tax deduction in the year of the transfer is made. Or, if the initial transfer of assets into a charitable trust doesn’t occur until after the Trust-maker’s death, then the Trust-maker’s estate will receive a charitable estate tax deduction.






A federal judge has blocked the Department of Labor from implementing and enforcing a final rule that would have raised the minimum salary required to be classified as exempt from overtime under the Fair Labor Standards Act (FLSA). This means the rule has been delayed and will not go into effect on December 1, 2016 as expected. Instead, the minimum salary required for the administrative, professional, and executive exemptions will remain at $455 per week pending a final decision in the case.


On May 18, 2016, the Department of Labor published a final rule that, among other things, would have raised the minimum salary for the administrative, professional and executive exemptions from $455 per week to $913 per week. The minimum salary increase was scheduled to take effect December 1, 2016.

Preliminary Injunction:

On November 22, 2016, a United States District Court Judge in Texas granted a request by 21 states and several business groups to temporarily block the rule from taking effect. Therefore, the minimum salary for the administrative, professional, and executive exemptions will remain at $455 per week at least temporarily.

The delay is temporary while the case continues to be litigated and the court determines whether the DOL had the authority to make the FLSA changes and whether they are valid. The delay applies to employers nationwide.

The court’s preliminary ruling delays the effective date of the FLSA changes until the court makes a final decision. Therefore, the rule did not go into effect on December 1, 2016, but the final rule could still become effective in the future. Employers should watch for updates on the case as it makes its way through the court process and continue to check the Department of Labor website for further updates.

On December 1, 2016, the Department of Labor filed a notice of appeal with the federal court. Pending the outcome of that appeal, the preliminary injunction remains in place.

If you have employees properly classified as exempt under the existing regulations (they meet all of the exemption tests, including the performance of applicable job duties and the current salary threshold of $455/week), you have the option of not making any changes. While this may be an option, there is also some risk that the rule could become effective in the future and be applied retroactively. For this reason, while the case is still being litigated, consider tracking the hours of employees who stay classified as exempt but who will have a salary that falls below $913 per week (or limit their hours to 40 or fewer per week). Consult your legal counsel to discuss your options.

If you’ve already notified an employee of a salary increase or reclassification effective December 1 or have already made the change, it may be too difficult to reverse that change or communicate that the change will not be made. For example, there may be employee relations implications if a salary increase were reversed. As mentioned above, there is also some risk that the rule could become effective in the future and be applied retroactively. If you do decide to reverse a salary increase or delay implementing one already announced, consider tracking the exempt employee’s hours (or limiting their hours to 40 or fewer per week) in case the rule becomes effective in the future and is applied retroactively.  Additionally, keep in mind that applicable state laws may require advance notice of any changes in pay and state laws may also govern the overtime exempt status of employees. Employers should consult their legal counsel to discuss options available before making and communicating decisions related to this latest development.




The estate tax is somewhat similar to income tax except unlike income tax, there is an exemption amount.  In the case of estate tax, the exemption amount is currently $5.45 M.  That is per individual, so if you are a married couple, it’s $10.9 M ($5.45 M x 2).  That’s a large exemption, so it’s not very common for estate tax to be due unless you possess a sizable estate.  Portability is when the surviving spouse claims the deceased spouse’s unused portion of the deceased spouse’s estate tax exemption limit.

For example, assume the deceased spouse dies with a taxable estate of $1.7M.  The deceased spouse still has $3.75M ($5.45M-$1.7M) available that is not used.  The surviving spouse, unless the law changes again, still also has $5.45M available as an estate tax exemption. Accordingly, by making the portability election on the deceased spouse’s estate tax return, he/she can claim the deceased spouse’s unused portion as well, thereby increasing the available exemption amount for the surviving spouse to $9.2M ($5.45M + $3.75M).

Although it might not be necessary in all situations, this can be very helpful to a surviving spouse, particularly one who has taken over a family business and/or real estate, the value of which could appreciate considerably over time.  The surviving spouse should talk with a competent estate planning professional as soon as possible following the death of the deceased spouse, because there are deadlines to make the portability election, which is typically nine months from the date of death of the first spouse.