The Law Office of Theresa L. McConvilleThe Law Office of Theresa L. McConville2026-10-09T13:12:40Zhttps://www.mcconlaw.com/feed/atom/WordPress/wp-content/uploads/sites/1201669/2020/01/cropped-FAVICON-V3-32x32.pngOn Behalf of The Law Office of Theresa L. McConville<![CDATA[You need testamentary capacity to make an estate plan]]>https://www.mcconlaw.com/?p=485472026-10-09T13:12:40Z2026-10-09T13:12:40ZTo draft an estate plan, a person must have testamentary capacity. This is the mental capacity to understand the estate planning process, to fully grasp the decisions that they are making and things of this nature. A person just needs to be cognitively aware of the impact of their estate plan on themselves and their beneficiaries.
One important thing to remember is that the law presumes testamentary capacity. If someone makes an estate plan, the starting point is the assumption that they had the mental capacity to do so and that the document should stand.When this comes into question is when someone challenges it. A beneficiary may claim that a person lacked testamentary capacity to make alterations to their estate plan late in life, for instance. The burden of proof is then on that person to demonstrate the loss of testamentary capacity.
How could someone lose this capacity?
Illnesses, especially degenerative brain diseases, are commonly cited in these cases. If a person wrote a will, but beneficiaries claim they had dementia or Alzheimer's, for instance, it could call their testamentary capacity into question. The same could also be true for certain injuries, like a traumatic brain injury.In some cases, drug or alcohol use could play a role. If someone was a known drug addict before they passed away, beneficiaries may believe that an estate plan was written while under the influence of these substances. That, too, could mean the person lacked the capacity to draft these legal documents and did not fully understand the ramifications.These are certainly very complex cases, and it is important for those involved to understand all their legal options.
]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[Is a simple will enough?]]>https://www.mcconlaw.com/?p=485442026-09-24T17:37:33Z2026-09-24T17:37:33ZSimply writing a will is often the first step that people take when they decide that it is time to create an estate plan. They use their will to divide their assets among their beneficiaries, giving them a bit more control over how things are passed on to the next generation.
A will is certainly a useful tool and can form the basis of an estate plan. But in many senses, it is not necessarily enough. There are other types of documentation you may want to consider, giving you a more comprehensive overall estate plan that does far more than just distribute your assets.
Advance directives
For example, you can use certain advance directives to make decisions about future medical care. You may want to select a proxy who can make decisions on your behalf, should you become incapacitated. You may want to leave instructions for your medical team or use documents like a do-not-resuscitate order. You can also make some of your medical decisions in advance so that, if you are not able to make them in the moment, your estate plan provides guidance.
A special needs trust
If you are leaving assets to a beneficiary who receives government benefits due to certain special needs, it is often wise to put those assets into a trust. If you just list those assets in your will, it can mean that the beneficiary no longer passes the means test. They have too many assets to qualify for benefits. But if you instead put them into a special needs trust, which holds them on the beneficiary’s behalf, they can retain their eligibility for benefits.
Setting up an estate plan
These are just two examples of other types of documentation that may help, beyond a simple will. You do have many options, and it can help to work with an experienced estate planning attorney to learn exactly how to draft your plan.]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[Who takes care of your financial affairs if you can’t?]]>https://www.mcconlaw.com/?p=485412026-09-13T01:42:23Z2026-09-13T01:42:23ZThe end of a person’s life does not always come quickly. Some people spend days, weeks, months or even years in a poor mental or physical state before they actually die.
During that liminal period when someone is incapacitated but still living, bills still have to be paid and other financial matters need to be handled. Once someone dies, their estate will be handled by their named executor or personal representative. Before that time, however, a power of attorney may be needed.
A financial power of attorney can take several forms
Giving someone power of attorney can provide much-needed access to your financial resources. What exactly a POA allows the designated agent to do will depend on how you set the power of attorney document up. Some people restrict the power of attorney to just one activity or account, while others give their agents more sweeping powers.Springing powers of attorney are one option. These mean the agent has no authority until doctors sign to say you are incapable of making decisions yourself due to your poor cognitive state. While useful, there is also a real risk that waiting until you reach this point could cause considerable financial problems for you and your loved ones.Durable powers of attorney are another option. Many people give their spouse or their adult child their durable power of attorney, so their chosen agent can step in and handle their finances the moment they cannot do so themselves. Complete trust in the agent is even more critical here, as unlike the springing power of attorney, a doctor’s signature is not needed to activate it. Learning more about the various options is wise if you wish your estate plan to better account for the range of scenarios that could occur.]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[Updating an estate plan after a divorce]]>https://www.mcconlaw.com/?p=485392026-08-31T02:35:49Z2026-08-31T02:35:49ZPeople typically update their estate plan every three to five years, but a lot can happen in that time. If you’ve recently been through a divorce, you need to make adjustments sooner.
While everybody’s situation is unique, here are several areas of concern that may need to be addressed in your estate plan:
Updating your list of assets
An estate plan often includes a list of assets that should be distributed to beneficiaries when you pass away. This list can include real estate, personal possessions, businesses and other valuable assets. It isn’t unusual for one’s assets to change when a marriage ends, since marital assets have to be divided.
Changing your beneficiaries
This almost always needs to be changed after a divorce. If your ex-spouse is one of your beneficiaries when you die in your will or on your insurance policies, you may want to change that immediately.
Changing your power of attorney document
A power of attorney document establishes an agent to make medical and financial decisions on your behalf if you become incapacitated. If you have named your ex-spouse, you will likely need to update your power of attorney document by naming a new agent. If it is time to update your estate plan, you may want to consider reaching out for professional legal guidance to avoid making any mistakes or missing something important. Professional legal guidance can help you make changes to your estate plan that best fit your needs.]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[What is an incentive trust?]]>https://www.mcconlaw.com/?p=485362026-08-14T13:35:44Z2026-08-14T13:35:44ZA trust is a legal arrangement that allows a trustee to manage trust funds. The trustee is responsible for distributing funds to the beneficiaries of the trust. In a revocable trust, for example, trust funds may be distributed to beneficiaries once the person who drafted the trust, or the grantor, passes away. However, a grantor may wish to be more specific about how trust funds are distributed. This can be done by using an incentive trust.
An incentive trust is a legal arrangement that allows a grantor to set rules that limit when trust funds are distributed. Here is what you should know:
How can an incentive trust be used?
The most common reason people use incentive trusts is that it helps ensure trust funds are used for the benefit of a beneficiary and not wasted. Some conditions that can be included in an incentive trust include the following:
Education: An incentive trust may be used to encourage a beneficiary to seek higher education. Trust funds may be distributed to a beneficiary who is enrolled in college. They may receive trust funds based on their grade point average.
Drug use: An incentive trust may be used to limit a beneficiary's substance use. Trust fund distribution may be stopped if a beneficiary fails a drug test.
Real estate: An incentive trust may be used to fund a beneficiary's first home. Trust funds may be distributed to pay for mortgage payments, utilities or other monthly expenses.
If you are ready to draft an incentive trust, you can reach out for professional legal guidance. Learn more today about your trust options.]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[Round out your estate plan with ethical wills or legacy letters]]>https://www.mcconlaw.com/?p=485332026-07-31T08:50:04Z2026-07-31T08:50:04ZEthical wills and legacy letters help people share their values, memories and wisdom with loved ones after they pass away. While they are not legal instruments, they strengthen an estate plan by offering clarity and emotional support.
Many families use them to preserve stories or express their hopes for future generations. They often become meaningful keepsakes for loved ones facing a difficult time.
Purpose of ethical wills
An ethical will explains your personal beliefs, life lessons and important experiences. It can also highlight family traditions or cultural practices that played a significant role in your life. Many people use this document to express gratitude or offer encouragement to those left behind.An ethical will does not replace formal legal documents, but it can add depth to a long-term plan.
Creating a legacy letter
A legacy letter may be shorter and more personal than an ethical will. It can focus on a specific event, memory or message for loved ones. Many people write these letters to mark milestones or share guidance. A legacy letter can be updated as life changes, which makes it a flexible option.A legacy document can cover many topics, but each item should reflect your voice and belief system. Examples to consider include:
Family values
Important memories
Personal hopes
Meaningful traditions
Lessons learned
Ethical wills and legacy letters offer families a way to preserve meaning beyond legal instructions. They can support communication, reduce confusion and strengthen connections across generations. The primary role of an estate planning professional is to create documents that align with the law, care for your assets and safeguard your loved ones. At the same time, their legal support can guide you in adding these personal touches to your plan.
]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[Why couples should consider an alternative to a joint will]]>https://www.mcconlaw.com/?p=485322026-07-18T20:38:49Z2026-07-18T20:38:49Zrequires both testators’ signatures.
How do reciprocal wills work?
A relatively simple alternative is to create two reciprocal (“mirror”) wills. These are two individual wills with essentially identical terms that mirror each other.
Typically, each person leaves all assets initially to their surviving spouse and designates that all assets remaining after that spouse has passed away go to their children and/or other beneficiaries. Each spouse can also designate that when they pass away, the children will get a specified amount. That way, they don’t have to wait until both parents are gone to get any inheritance.
Meanwhile, the surviving spouse is free to modify their own will if needed at any time. This could become necessary for any number of reasons. For example:
An adult child named as a beneficiary may become incapable of handling an inheritance due to addiction, mental illness or simply poor money management skills.
One child may warrant a larger inheritance than their siblings because they have had financial challenges, or maybe they have provided significantly more caregiving help to their parents.
There’s a change in the law that warrants a modification for the will to remain valid or maybe to minimize taxes.
Note that with reciprocal wills, spouses can modify their wills separately or together while they’re both still alive. If they no longer have the same terms, they just won’t be reciprocal wills.
It is important to remember, however, that it’s typically best to have additional estate plan documents in place like advance directives and powers of attorney. These can make things easier for loved ones if a person becomes incapacitated.
When it comes to these and a host of other complicated concerns, seeking experienced estate planning guidance can help California couples to determine what will best meet their and their loved ones’ needs.]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[How digital assets fit into modern estate planning]]>https://www.mcconlaw.com/?p=485312026-07-14T03:10:47Z2026-07-14T03:10:47ZWhat are digital assets?
Digital assets include any information or assets that exist in electronic form, such as:
Online banking and investment accounts
Email accounts
Social media profiles
Cloud storage accounts
Digital photos and videos
Blogs and vlogs
Cryptocurrency and digital wallets
Reward programs and airline miles
If you become incapacitated or pass away, your loved ones may not have the legal authority or ability to access your online accounts. Passwords, security measures and privacy laws make it difficult for family members to locate, access and manage important information.
Without a digital estate plan, your family may encounter obstacles when trying to:
Pay bills or access financial accounts
Preserve family photos and videos
Close social media accounts
Access cryptocurrency or other digital investments
California has adopted laws that address access to certain digital assets after a person’s death or incapacity. These laws allow a properly authorized fiduciary, such as an executor, trustee or someone with power of attorney, to request access to certain digital accounts. However, the extent of that access often depends on the estate planning documents, your privacy settings and the account provider’s terms of service.
A comprehensive estate plan should address both traditional and digital assets. A legal professional can help ensure that every part of your legacy, both online and offline, is protected for your loved ones.]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[Is a trust too restrictive?]]>https://www.mcconlaw.com/?p=485302026-06-29T13:38:24Z2026-06-29T13:38:24ZOne way to set up your estate plan is by using a trust. You can give instructions to the trustee about how they should distribute those assets to your intended beneficiary. This can give you more control.
For instance, perhaps you want to make sure that the money is used for the beneficiary's future college education. You could tell the trustee that they can make payments for educational costs, but the money should not be used for frivolous purchases.But could this actually become too restrictive? Say that the beneficiary decides not to go to school because they want to start a business or join the military. If the trust can only be used for educational costs, are they now prevented from using their inheritance?
A discretionary trust
One way to get around this is to use a discretionary trust. Instead of choosing a specific focus, such as education, you just pick a trustee who can use their discretion and decide how the funds can be utilized.In the example above, the trustee may decide that it is a perfectly acceptable use to put the inheritance toward starting the business. Just because the beneficiary decided not to go to college does not mean they should not receive their inheritance, so the trustee can still authorize payments. They just ensure that the money is used for something they believe you would have considered beneficial, rather than something you may have deemed frivolous.Trusts can be a very useful part of estate planning, especially if you carefully consider their long-term ramifications. Be sure you know what legal steps to take to set one up.
]]>On Behalf of The Law Office of Theresa L. McConville<![CDATA[How pet trusts can help to protect companion animals]]>https://www.mcconlaw.com/?p=485292026-06-11T23:52:02Z2026-06-11T23:52:02ZWhat a pet trust does
A pet trust separates ownership of the animal from the assets set aside to provide for the pet. The new owner of the pet has a responsibility to meet the trustor’s requirements regarding the animal’s care. Those requirements may include living with the animal, providing regular veterinary care and even continuing specific feeding practices.
The trustee overseeing the trust is typically a separate party. They manage and distribute the resources intended to meet the pet’s financial needs. The trustee can intervene in scenarios where the party caring for the pet fails to fulfill their obligations, intends to surrender the pet or attempts to euthanize the animal.
A pet trust removes the incentive to destroy or surrender the pet to gain control of assets. It also helps ensure that the person assuming responsibility for the pet has the resources necessary to ensure its safety and comfort.
Working with an attorney to properly fund a pet trust can be a helpful step in the estate planning process. People who love and worry about their pets can make arrangements in advance to better ensure the safety of their animals after they die.]]>