When a loved one passes away, the process of administering that person’s estate depends on whether there is a living trust or will, or if that person has no estate plan, depending on the value and type of assets, the family will be faced with the probate process.
Wills
A will is a legal declaration by which an individual designates a person to manage his or her estate following death, makes specific gifts of property, and names heirs to the estate. To be valid, the will must meet certain strict formalities. Upon death, the will is offered to probate court, to initiate the probate process.
Probate
Probate is a court-supervised process of transferring legal title of property, from the estate of the person who died, to his or her heirs or beneficiaries. California’s probate process is easy to avoid if you pay attention to what you own and how you own it. California probate proceedings are conducted in the Superior Court for the county which the decedent lived, and can take several months, and sometimes as long as several years.
During the probate process, a person is either nominated in a will as the executor, or if there is no will, the Probate Code provides a list of persons who have priority to petition the court to become administrator. Once a petition is filed, notices are sent to heirs, and a hearing is conducted to appoint the executor or administrator, and the validity of the will is also determined. If there are no objections or other issues, the person appointed then begins administration of the estate, including inventorying and appraising the assets, locating creditors, paying bills, giving notice to taxing authorities and other government entities, filing tax returns, and managing the estate. Upon completion of the administrator’s duties, a final petition is filed with the court requesting distribution of the estate to the heirs.
The California Probate Code sets the statutory fees that attorneys can charge for a probate. Additionally, higher fees can be ordered by a court for complicated cases.
Many estates do not have to be probated. Assets owned through a living trust, assets owned by two or more people in joint tenancy, small estates valued under $100,000, and when a surviving spouse petitions the court to change title of assets.
Living Trusts
With proper planning, your family and beneficiaries will not be faced with California’s expensive and time-consuming probate process. By putting in place a solid and comprehensive estate plan, you can avoid these costs, fees and taxes. Most importantly, you can provide a smooth transition for your heirs.
A revocable living trust is usually the best way to avoid the time and expense of a probate of your assets at your death. The trust essentially acts in place of a will to make sure your property and assets pass to your beneficiaries with minimum hassle, expense, and time. There are many advantages of a living trust, including designating a successor trustee who can promptly take over the management of your affairs.
A comprehensive estate plan includes the following:
- Certification of Trust
- Pour-over Will
- Durable Power of Attorney for Management of Property and Personal Affairs
- Advanced Health Care Directive
- Other documents, including preparation and recording of deeds for your real property, burial instructions, instructions regarding heirlooms and other tangible personal property, and various other documents tailored to your specific case
Control Over Your Estate
Our office assists our clients in maintain privacy and control over their estate, and setting up an estate plan that makes sense for the individual. For example, if you don’t own real property, you may not need a living trust. If you have minor children, with minimal assets, and your wish is simply to designate a guardian in the event of your death, a will might be the best tool for you.
We offer our clients one or more of the following: preparation of comprehensive revocable living trusts (for single and married couples), special needs trusts, trust amendments, preparation of wills, amendments to wills, and probate avoidance tools.
We also assist clients grieving the death of a family member by providing trust and probate administration services to trustees, executors and administrators, small estate distribution, spousal property petitions, trust division upon the death of a spouse, and trust funding.
Estate Planning Issues in Family Law
Since our office has extensive experience and knowledge in the practice of family law, we have seen the pitfalls and consequences from the absence of an estate plan, or the lack of knowledge regarding the importance of updating an estate planning documents, after any family law proceeding.
We strongly recommend clients to create and update their estate planning documents to protect their assets and children during and after any family law proceeding. Our office has experience in preparing estate planning documents, and we will give you the advise, knowledge, and direction you need to fulfill your goals and wishes.
