We are often asked these questions by clients seeking our counsel. Please contact us if your question is not answered below.

Legal Wills FAQs

Why Should I Bother to Have a Will?

Without one, upon your death, if your estate is worth more than $150,000.00 in personal, as opposed to real, property, the laws of the State that you live in when you die will determine who inherits from you. That may not be what you want; if it is, then you don’t need a will.

What are Reasons to Have a Will?

To give direction as to who will receive your property after your death. If you have children under age 18, to nominate guardians to look after them and their property until they come of age.

If I Die Without a Will, and I own Real or Personal Property, What Happens?

If you own real property worth more than $20,000 and no one else is on title with you there will be a probate. If you have more than $150,000 in personal property there will be a probate.

If I Die With a Will, What Happens?

There will be a probate.

Living Trusts FAQs

Why are Living Trusts Popular?

Living trusts are a popular estate planning device in California for a number of reasons.

First, if the trust is funded prior to death (e.g. Bank accounts are in the name of the trust, real estate is owned by the trust), there will be no necessity for probate, thus saving fees and costs, as described above.

Second, there are ways to minimize federal estate taxes on the second death, if the decedent is married when death occurs. Finally, in the case of a blended family, there are ways to insure that the second spouse benefits from the estate of the decedent, while still requiring that after the second spouse’s death, the first decedent’s property benefits children of a prior marriage.

What are the Costs of a Living Trust?

Living Trusts are orders of magnitude cheaper than the probate fees used in the example above.

Estates FAQs

What is Included in a Complete Estate Plan?

Typical documents are the pour-over will (a default will that requires assets that were not in the trust at death to be put into the trust after probate), the trust, a financial power of attorney (to take effect after the incapacity of the principal) and a medical power of attorney (also referred to as an Advance Health Care Directive, in California; expresses the desires of the principal with respect to medical care if the principal is unable to give direction on their own).

Are All of the Above Documents Required?

No. Typically, a trust and pour-over will are the minimum required for an estate plan.

What is the Difference Between an Intestate Estate and a Testate One?

When someone has died, they either died with a probatable estate ( i.e. more than $150,000 in personal property) or they did not.

  • If they died with more than $150,0000 in assets, they died with a will or they did not…
  • If they died with a will, they are said to have died “testate”.
  • If they died without a will, they are said to have died “intestate”.

Either way, a probate is required; the difference between the two alternatives is that someone who has died testate (with a will) has an executor, while someone who dies intestate (without a will) has an administrator.

Both the executor and the administrator are referred to as the “personal representative” of the estate of the decedent.

Probate FAQs

What is Probate?

It is a court proceeding in which your estate is supervised by the Court, to insure that your creditors are paid, your taxes are paid and only then, the residue of the estates is distributed to your heirs (either intestate, if you died without a will, or restate, if you died with a will).

Is Probate Bad?

No. It is generally time consuming (a minimum of 5 months, generally more) and it is public (court records are generally public). It’s biggest drawback is that it is expensive.

The statute provides that the attorney (and the administrator/executor) each receive 4% of the first $100,000 in value of the estate, 3% of the next $100,000, and 2% of the value between $200,000 and $1,000,000, with 1% thereafter.

As an example, a $500,000 estate (in value) would result in $13,000 in fees to the attorney and another $13,000 in fees to the administrator/executor, for a total of $26,000.

In California, attorney fees for pronating an estate are set by statute.

What is the Process for Probate of an Estate?

Probate is initiated by filing a petition for probate in the Superior Court of the County in which the decedent resided at the time of death.

Once the petition is filed with the court, a hearing date will be assigned; then it is the responsibility of the person filing the petition to publish Notice of Hearing in an appropriate newspaper, as well as sending Notice of Hearing to all heirs / those named in the will.

In the petition for probate, someone will be nominated as administrator or executor (depending on whether there is a will; if there is then typically the executor will be nominated by the decedent).

Assuming that the court finds that all notices have been given as required by law and that the petition is otherwise adequate, the court will order the appointment of the administrator or executor.

The administrator or executor must then marshal the assets of the estate and prepare an inventory and appraisal (a probate referee will be required to assist in the preparation of the inventory and appraisal if there are non-cash assets in the estate). Once the inventory and appraisal is complete, it is filed with the court.

While the inventory and appraisal is being prepared, Notice of the probate must be sent to known creditors of the decedent, to allow them the opportunity to file Creditor’s Claims with the court. Each Creditor’s Claim is either accepted or rejected by the administrator or executor. If rejected, litigation may ensue between the creditor and the estate. If accepted, then the creditor will be paid before the estate is distributed to the heirs or beneficiaries.

Generally, there is a four month period during which Creditor’s Claims may be filed in the estate. After that four month period, a creditor who received notice is barred from filing a claim (there are exceptions).

Assuming that the estate is solvent and that there will be assets left over after payment of the creditors, all taxes have been paid or provided for, then the estate is in a condition to be closed….

When the estate is in a condition to be closed, a report and accounting is filed with the court, that details the activities of the administrator or executor. This includes detailed schedules showing receipts and disbursement of estate funds.

The attorney for the estate, and the administrator or executor, will ask for their fees and reimbursement for any costs that they advanced on behalf of the estate, with the report and accounting.

The report and accounting will be set for hearing by the court. Notice and typically a copy of the report and accounting will be sent to all heirs or beneficiaries before the hearing date.

Assuming that there are no deficiencies with notice and that the report and accounting are technically correct, the court will approve the report and accounting, awarding attorney fees and administrator or executor fees at the same time.

After approval, an order is submitted to be signed by the court. The administrator or executor then makes the distributions, obtaining receipts from each heir or beneficiary who receives assets from the estate. These receipts are then filed with the court and the administrator or executor is discharged from their duties by the court.