If you die without a will, the state’s probate court will take control of distributing your assets. Every state has very well-established laws to decide who will get your money and real estate. Generally, the list of next-of-kin is as follows: spouse, children, parents, siblings, grandparents. Without a will to follow, a probate court will go down the list until it reaches a living person and assign that person your entire estate. If there are multiple people within a category (three siblings, for example) the court will divide the money evenly. The court generally will not split money between categories. So, for example, if you have a spouse and two children, your spouse will get the entire estate.
Probate laws keep next-of-kin succession simple. If you want to divide your estate into a more complicated pattern, you need to create a will. A valid will can be as simple as a notarized statement. However, if you have significant assets (over $10,000) you should consult an attorney to help you craft a will. A will crafted by an attorney might help avoid undue taxation, prevent delays in probate court, and assure assets are divided exactly as you want. An estate lawyer will add some necessary information to your will (the name of your preferred executor, for example) making it more functional and efficient. A homemade will could be subject to verification challenges and contestation by someone left out of the will.
The best will is the one you leave behind when you die. No will is perfect, and there is no need to feel hesitant about making an appointment with an attorney. If you don’t have a huge estate to leave behind, it won’t cost much for a good lawyer to create a good will for you and your next-of-kin. If you do have a large estate, you can afford the time to ensure your estate is properly distributed after your death with little taxation and few delays.Read More
There are 3 types of probate conservatorships that can be obtained in the San Diego Probate Court. The first is the general conservatorship of a person where the Probate Court gives a responsible person (the conservator) the ability to take care of another person (the conservatee) or to manage someone’s financial affairs. With a conservatorship of the person, the conservator takes care of the conservatee’s health care, housing, food, clothing, and other personal needs. A conservatorship of the estate pays the conservatee’s bills, taxes, asssets and manages other aspects of finances.
A limited conservatorship is one that is set up for a developmentally disabled adult. If an adult with developmental disabilities is unable to care for himself or herself or their property in certain ways but not to the extent of needing a regular conservatorship, a limited conservatorship may be appropriate. The difference between a limited conservatorship and a general conservatorship is that a limited conservatorship is only available to adults with developmental disabilities. This could be something like autism, a brain injury at birth such as cerebral palsy or mental retardation, or other disability that arose before the age of 18, which is expected to continue indefinitely and constitutes a substantial handicap. The handicap could be in the area of self-care, receptive and expressive language, learning, mobility, self-direction, capacity to live independently, or economic self-sufficiency. Some of the powers that can be granted to the limited conservator are the power to decide living arrangements, the power to a sign a contract, and the power to make decisions about education or health care.
A third type of conservatorship is one under the Lanterman-Petris-Short Act for persons who are gravely disabled. “Gravely disabled”means a person, who as a result of a mental disorder or chronic addiction is unable to provide for their personal needs for food, clothing, or shelter. Usually this type of conservatorship is necessary for an individual who is seriously mentally ill or needs specialized care.
Use and Abuse of Powers of Attorney
A power of attorney is a document that lets you appoint someone you trust (“your agent” or “your attorney-in-fact”) to act on your behalf. When you create a power of attorney,you are called the “principal.” Powers of attorney can be limited in scope or can be quite broad. You might execute a power of attorney to allow someone to close an escrow while you are out of town. You might give your agent the authority to sell your car with a power of attorney. Powers of attorney can be limited to a specific act or they can be quite broad. They also can be powers that are effective immediately or “springing” powers that come into existence when you become incapacitated.
A power of attorney can be misused which is why we emphasize that your agent should be someone you trust. Unfortunately there have been many cases where an agent acting under a power of attorney has used the document to help themselves to the money or assets of the principal. It is important to recognize that a power of attorney is a very powerful tool bringing with it a fiduciary duty to act in the best interest of the person giving the power of attorney.
Some circumstances to look for if you have a loved one who has given another individual a power of attorney are a sudden change in financial circumstances of the agent or the principal or a loved one seeming to be overly trusting of his or her agent. Remember too that a power of attorney can be cancelled or a new one executed at any time.
What is an “estate”?
Estate planners like to use the term”estate” frequently, assuming that everyone knows what that term means. “Estate planning,” “trust estate,” “distributing your estate,” and “estate taxes” are terms often used. What do these terms mean?
In simple terms, everything you own is your “estate”. It includes all real property, personal property, bank accounts, stocks, bonds, pension and IRA accounts, retirement plans, and life insurance. Sometimes assets overlooked are mineral rights, timeshares, deeds of trust, assignments, or notes receivable. It includes community property, separate property, or property held in joint tenancy with someone else. It includes all businesses, whether sole proprietorships, partnerships, or joint ventures. Personal property includes the furnishings in your home, artwork, tools, musical instruments, collections, guns, gold, RVs and other vehicles.
With that description, it is easier to understand other terms that have the word “estate” in them:
“Estate planning” involves the planning for the management of your estate during your lifetime and the plan for distribution after you die. It is not simply the writing of a will or a trust. It involves planning for periods of incapacity also, whether temporary or permanent.
Your “trust estate” is everything you transfer into the name of your trust. You probably will have assets that are part of your “estate” in the sense that they are an asset you own but will not be part of your “trust estate” because they are not in your living trust. Examples are IRAs, retirement, or life insurance which are definitely part of your “estate” but since they usually have specific beneficiaries, they are not part of your “trust estate.”
Distribution of your “estate” is the gathering and valuing all of a decedent’s assets, however held, and distributing them to the decedent’s beneficiaries or heirs. Thus if you had a trust but also had life insurance, your trustee would see that the trust assets go to the beneficiaries you named in your trust and that the life insurance proceeds were distributed to the beneficiaries you named in your life insurance beneficiary designation.
“Estate taxes” are the federal taxes that have to be paid after death if your estate is over the exemption amount, which is $3.5 million in 2009. If your “estate” (including everything you own, not just your trust assets) is over that amount, “estate taxes “ have to be paid.
What is a QTIP Trust?
We have all heard of a QTIP, but do you know what it means in the context of estate planning?
If you are in a second or third marriage, as many people are in San Diego, you may know that a QTIP is a type of trust. It is a common type of trust which provides for your current spouse but also ensures that ultimately your estate will pass to your own children.
QTIP actually stands for Qualified Terminable Interest Property and is often used in cases of blended families where there are “his”, “hers”, and “their” children. For example, a husband may set up a QTIP trust to provide income for his second wife when he dies.The husband names his children from his first marriage to be the ultimate beneficiaires when his wife dies. There are some strict guidelines for such a trust which an experienced estate planner can explain to you. Some of those are that all of the income from the trust must go to the surviving spouse for her lifetime. The surviving spouse cannot use trust assets to benefit a new spouse or her own children. When the surviving spouse dies, the remainder of the trust must go to whoever the Settlor has designated in the trust document, which in this example would be the husband’s children.
QTIP Trusts are expecially appropriate where estate taxes might be involved. In 2009 this is estates of married couples with assets over $7 million. If taxes are not an issue, there are other options for blended families including customized language in your trust in which your trustee makes payments to the surviving spouse for his or her support and then upon the death of the surviving spouse, to the your children. You can also leave your current spouse a life estate in a home that was yours before marriage and shared together during your marriage. When your spouse dies, the home goes to your children.
Multiple marriages, where both spouses have children from prior marriages, is not an area for do-it-yourself trusts or inexperienced lawyers.
Leaving Money to Grandchildren
Many people want to leave their grandchildren something when they pass away. It may be small or it may be significant. There are several ways to do this, some better than others. When you draft your estate plan, you have no way of knowing whether some of your beneficiaries are going to be minors at the time you die. You have to plan for the possibility that some may be minors.
1. Outright Gift. You can simply provide in your will that a dollar amount or a percentage of your estate will go to a grandchild but this leads to problems if the recepient is a minor. Substantial amounts of money being inherited by a minor may cause a court-supervised guardianship of the estate of the minor until he or she is 18. Then at 18, the entire inheritance is handed over to the now adult, but still 18 year old, with no limitations attached.
2. Custodial Accounts. One way you can leave money to minors is in an account under the Uniform Transfer to Minors Act ( a UTMA account). This works well for small amounts of money. The account has a custodian who has the power to withdraw funds for the health, education, and maintenance of the minor. Once the child reaches the age you specify (In California it can be as old as 25), the child has full access to the funds.
3. Minor’s Trusts. Another option for leaving money to minor beneficiaries is to set up a minor’s trust. This is a trust customized to fit your situation and fulfill your wishes. You have infinite possibilities. You can put limitations on what the trustee can use the assets for such as for medical expenses, education, a home, car, etc. You can provide for the intervals at which you want the child or grandchild to receive distributions. As an example, one method would be 1/4 at age 18, 1/4 at age 25, 1/2 at age 30, and the balance at 35. The disadvantage of a trust is that there are costs of administering the trust during the time it is in existence. An experienced estate planner can help you weigh the benefits against the costs and expenses associated with administering the trust.
4. Educational Savings Plans. If your goal is to help your grandchildren with their education, there are many tax-favored college savings accounts, also called 529 Plans, Cloverdale Plans, or educational IRAs. The earning are not usually taxed as long as they are used for education. If the beneficiary does not go to college, however, the funds will have to go to another beneficiary.
Other ways to help your grandchildren out is to pay their education expenses directly while you are alive. You must however write the checks out to the school, not the individual. Savings bonds also work well since they are purchased at half the face value.
Revocable Living Trusts in This Economy
Most people agree we are in the middle of an economic recession in this country. Unemployment is high and the stock market is like a roller coaster. How does the recession affect your need for a trust or affect your exisiting trust you already have?
If you do not have a trust and have assets of over $100,000, you do need a revocable living trust even in this economy, and some people would say, even more so. If you have real property out of state, a trust will avoid probate in both California and the state where the property is located. Many people have young children and need a trust with guardians set up in case something happens to them. Death is inevitable, recession or not, but a trust will enable your estate to be distributed faster and less costly than with a will or with no estate plan at all.
If you already have a trust, the recession may also affect you. In a recession, some investors try to recession-proof their portfolios by switching their IRAs, 401(ks) or other investments into different funds or CDs. Have you remembered to always title new investments in the name of your trust and made up to date beneficiary designations? Changing accounts, sales of real property, refinancing, etc. all increase in times of rescession, leaving open the possibility that assets are not properly titled in the name of the trust.
A second way your estate may be affected is by the type of trust you have. Your trust, even if old, is still valid, but may not be optimal. Estate plans written in the 90′s often require a division of the estate into two separate trusts upon the death of the first spouse. These trusts are called A/B trusts, exemption trusts, or marital trusts. That was a good choice in those days but today with an inctease in the estate tax xemption to $3.5 million ($7 million per couple) you may want to update the type of trust you have. Revising your trust may save on trust administration after the first death and give the surviving spouse more flexibility.
Lastly, the economy may affect not only you but your beneficiaries. Do you have beneficiaries that have become dependent on public assistance? Are some facing bankruptcy? Maybe you need to create a special needs trust or make sure your trustee has the power to postpone distributions if a beneficiary is in bankruptcy.
We can’t control the stock market and other effects of the rescession, but we can control our own estate plan by creating the appropriate documents and revising them from time to time as necessary. Contact us if you need to discuss these issues.
The best way to avoid probate is to have a revocable living trust into which you transfer all of your assets to yourself as the trustee during your lifetime. Upon your death, the successor trustee you have chosen will have immediate authority to administer your trust without a probate. It is critical however that you in fact transfer your assets into your trust by deed, changing title to accounts, etc. Other advantages of a trust are privacy and that if properly drafted, the trust will also have provisions for someone to manage your assets if you become unable to do that for yourself.
Other ways to hold title to avoid probate are:
1. Property held in joint tenancy with a right of “survivorship”. An example might be a home you own with your spouse with a “right of survivorship.” Sometimes people own their cars in joint tenancy with other people or a bank account in joint tenancy. When a joint tenant dies, the other joint tenant(s) inherit the property without the probate process. Although assets held in joint tenancy avoid probate, holding title in joint tenancy can cause other problems such as the potential loss of a full step-up in basis which can result in capital gains. Another problem which can result when you own something in joint tenancy is that creditors of the other joint tenant may be able to enforce a judgment against the property.
2. Payable on Death Accounts (or POD accounts). This is a type of account where you choose a beneficiary who will receive the account upon your death. These accounts pass to the beneficiary without probate.
3. IRAs and Retirement Accounts. Benefits payable to beneficiaries under these accounts automatically pass to the named beneficiaries and avoid probate.
4. Life Insurance Proceeds. Just as with pension and retirement plans, life insurance proceeds are paid to the named beneficiaries and avoid probate.
Frequently Asked Questions about San Diego Probate
1. How long will my probate matter take? As a general rule, most probates in San Diego are finished in a year to 18 months. However there can be many issues that may cause the probate to last longer. Common examples are litigation issues that develop such as an objection to the will, unusual property that has to be appraised or liquidated, difficulty finding heirs or beneficiaries, and larger estates with tax issues.
2. If I am an administrator or an executor, will I have to post a bond? A bond is for the purpose of protecting the decedent’s estate in case the personal representative mismanages the estate. Depending on the size of the estate, bond premiums can be $2000 or more per year.If the will waives bond or you can get all the beneficiaries to waive bond, you probably won’t have to post a bond, however the Court can always order the personal representative to be bonded if the Court believes it is warranted. Bonds are usually required if the administrator or executor live out of state. To obtain a bond, you have to provide information to the bond company about your employment, criminal convictions, bankruptcies, and civil judgments against you. Some people are not bondable if they have issues in these areas.
3. What should I do if I am a creditor of a probate estate? If someone has died owing you money and there is a probate opened, you can file a creditor’s claim against the estate. You may receive a Notice of Administration if you are a known creditor in which case you have 60 days to file a claim. If you are not notifed of the probate, you have 4 months after the letters testamentary (probate with a will) or 4 months after the letters of administration (probate without a will) within which to file a claim.
4. What if my spouse died and all of his or her property is community property? If all of a decedent’s property is held as community property with the surviving spouse, a petition can be used to pass the assets to the surviving spouse. This is a simple petition filed in the probate court but without all the formalities of regular probate and it can be heard in a relatively short time after it is filed.
These are general answers to general questions but remember each probate situation has its own facts and issues which may change the general rules.
What is Your San Diego Probate Matter Going to Cost?
The fees for a probate attorney to handle your probate matter are set forth in the California Probate Code. Section 10810 escribes the maximum fees an attorney can charge. These are as follows:
4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
If the estate is worth more than $25 million, the Court will determine the fee.
Who is entitled to these fees? The statute allows compensation for both the attorney handling the probate and the executor or administrator (if you have read the previous blogs, you know the difference). So for example, if the estate is valued at $500,000, the statutory fees would be $13,000 for the attorney and $13,000 for the executor/administrator. With a $1 million estate, the fees would be $23,000 each, or $46,000 total. Fees can also be increased by the court if the probate is complicated by litigation or tax issues.
You may be asking how the fee is determined when there is an asset which is mortgaged. For example, you may have a home appraised at $400,000 but it has a $300,000 mortgage. The house is still considered an asset worth $400,000 for purposes of determining attorneys fees.
In addition to the statutory fees for attorneys and executors or administrators, there will aso be costs to file the probate, publication costs, and appraisal fees.
What Assets Do Not Go Through Probate?
If you have a will and not a trust, when you die your estate will have to go through probate. In general this means that all the property that the deceased owned at the time of death such as real property, personal property, bank accounts, investment accounts, etc. will be part of the probate estate. However there are some exceptions. You may have in your estate some assets that do not go through probate in California. These are some of them:
1. Property held in joint tenancy. An example might be a home you own with your spouse with a “right of survivorship.” Sometimes people own their cars in joint tenancy with other people or a bank account in joint tenancy. When a joint tenant dies, the other joint tenant(s) inherit the property without the probate process. Although assets held in joint tenancy avoid probate, holding title in joint tenancy can cause other problems such as the potential loss of a full step-up in basis which can result in capital gains. Another problem which can result when you own something in joint tenancy is that creditors of the other joint tenant may be able to enforce a judgment against the property.
4. Life Insurance Proceeds. Just as with pension and retirement plans, life insurance proceeds bypass probate and are paid directly to the named beneficiaries.
Another way you can avoid probate is to transfer your assets into a revocable living trust. Assets which have been transferred into the name of the trust are non-probate assets.Read More
What is Joint Tenancy? Can I hold my property as “joint tenants with right of survivorship” to avoid probate? Are there any other problems with Joint Tenancy?
- Joint tenancy means that when the first owner dies, title automatically passes to the surviving owner.
- The simple answer is no. Here is why:
- If you hold property as Joint Tenants with your spouse, Probate proceedings will be initiated on upon the death of the surviving spouse. Additionally, holding property in joint tenancy with your spouse prevents your family from optimizing estate tax savings available to married couples.
- Yes. If you hold property in Joint Tenancy with someone other than your spouse, you may cause the “unintentional disinheritance” of your children. This can occur because, on your death, the surviving Joint Tenant has no obligation to provide for your children or your spouse because they hold the property outright.
When it comes to estate planning, where do we find the most drama? What cases are the most contested in Probate Court? The answer is easy, Conservatorships! Today’s court systems are not helpful when it comes to resolving family disputes. Ask someone who has been through an unpleasant divorce or painful custody battle and they will tell you that the court litigation process is time a consuming, draining, expensive process–there are no real winners.
Conservatorship is a legal concept where a guardian is appointed by a judge to protect and manage the financial affairs of a person’s daily life. This could be due to many factors, such as physical disabilities, mental limitations, or old age. Conservatorship can refer to the legal responsibilities over a person who is mentally ill, suicidal, incapacitated, or in some other way unable to make sound legal, medical, or financial decisions.
Typical Conservatorship cases involve elderly parents who have started to show signs of loss of memory, mental defects, or inability to make appropriate decisions. Most family relationships are strained after a court case has been completed, and it’s no different in Conservatorship cases. The only difference is that the people involved are usually siblings fighting over an aging parent. The one benefit of an unpleasant divorce case is that when there are no children involved, the man and woman can go their own individual ways. The good news is that they do not have to continue to have any relationship after their divorce has been finalized.
Unfortunately, in Conservatorship cases family members are often torn apart during the litigation process. When all issues are eventually settled, the family then has to find a way to continue a healthy relationship. The litigation process does little to resolve any underlying sources of animosity, which often include the conflict over money, control, or unresolved hurts.
As practicing attorneys in this particular area of law, we are concerned about these types of cases that involve our aging population. The lack of proper planning is and will be extremely common, and our courts will eventually be in overload. We advise our clients to take steps and think ahead now by creating an plan well in advance to avoid the stressors that can come from a Conservatorship case.Read More