The probate process is one that many people find difficult to handle when their loved one passes away. While there are some cases that involve wills and other estate planning tools, some people pass away intestate.

A loved one who dies intestate doesn’t have a will or estate plan in place. This means that the loved ones who are left behind would have to determine where everything goes. However, all of this must be in accordance with the intestate laws. Here are some points to know if your loved one died intestate.

Asset limits in California

When a loved one passes away intestate and the estate meets certain requirements, you will have to go through the probate process. In California, the small estate limit is $150,000. If an estate is below this amount and 40 days have passed since the person’s death without anyone coming forward to claim part of the estate or to challenge the successor, the assets will go to the successor without having to go through the formal probate process.

The laws determine what happens

Many people get stuck on thinking that the concept of birthright rules here. This isn’t at all the case. The intestate laws in California determine who is going to get what. The property is divided into community property and separate property. How the property is handled after your loved one passes away is determined by the type of property and who on the successor list is still living. For example, a surviving spouse is on the list of successors. Siblings, children and parents are all on the list. In some cases, the list can even include nephews, nieces and other more distant relatives if there aren’t any of the closer relatives in the picture.

Probate isn’t quick or cheap

If your loved one’s estate is too large to bypass probate or if there is a challenge filed, you will have to work through the probate process. This isn’t an easy to cheap ordeal. In fact, this is one of the main reasons why some individuals do create an estate plan. The estate plan can save time and money.

The probate process can be rather complicated. It is imperative that you understand what points apply to your case. This might be able to help you save time and money as you work through handling your loved one’s estate during this trying time.

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Many people develop an estate plan when they first have children. They want to ensure that their kids are cared for by responsible adults and provided for financially if they pass away. However, too often, they then neglect to update those estate plans over the years.

An experienced California estate planning attorney will advise you to review your plan every few years or when a major life event occurs. However, they depend on their clients to tell them when a change occurs that may warrant a change in their plan.

Sometimes these changes are immediate, like a birth, death, marriage, divorce or move. Sometimes they are gradual, like children growing up and becoming independent or an accumulation of wealth over the years.

Following are just a few changes that may warrant a review of your estate plan to make sure that it’s still fulfilling your intentions and is still working in the best interests of your family and other beneficiaries.

— Relocation to another state: Every state’s estate laws are unique. Whether you’ve moved into or out of California since your estate plan was set up, it’s essential to have an estate planning attorney in your new home state review your plan to make sure that it complies with state laws.

— Changes in philanthropic goals: Perhaps when you developed your estate plan, you didn’t have any charitable organizations you felt passionately about. Perhaps you designated several charities, but one has disappointed you. It’s always a good idea to review your philanthropic goals and make additions and changes to your estate plan as you desire.

— When a fiduciary is no longer appropriate: Fiduciaries may be people or organizations who are names as trustees to control the assets in a trust that you’ve set up in your will. Executors are also fiduciaries. They are the ones responsible for administering the plan after your death as you’ve directed. Even if the people you’ve designated are still alive, you may determine that they’re no longer responsible enough or able to do the job correctly.

If you have any question about whether a change in your life warrants a revisit of your estate plan, it’s best to check with your attorney. He or she can advise you on whether a change is necessary and help you do adjust your plan accordingly.

Source: Fidelity, “Dust off your estate plan: 10 common pitfalls to avoid,” accessed June 07, 2017

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In California, married couples have what’s known as a spousal fiduciary duty to one another under the state’s Family Code. According to the code, the marital relationship “imposes the duty of the highest good faith and fair dealing on each spouse, and neither shall take unfair advantage of the other.”

This means that if one spouse is incapacitated, the other can manage any assets that are deemed community property. However, in order to manage his or her spouse’s separate property, the spouse must have power of attorney or trustee powers.

This is yet another reason why estate planning is essential. If you want your spouse to be able to manage your separate property should you become unable to do so, you need to designate that. If you don’t, your spouse may need to file a petition with the court to manage non-marital assets belonging you.

It’s best to make these arrangements in your estate plans while you are both physically and mentally healthy. Otherwise, it’s possible for other family members to make a case that you weren’t mentally capable of making the decision to let your spouse manage your property or that your spouse used undue influence on you.

When you and your California estate planning attorney are developing your estate plan, it’s generally best to inform your children and other family members about the terms of the plan. This is particularly important if you are on a second or subsequent marriage and have adult children.

While this is often less than pleasant, by informing everyone of your wishes, you can help prevent family squabbles after you are gone. Your attorney can advise you regarding how best to do this and can be on hand to help answer questions and deal with any issues that family members may have.

Source: Record-Bee, “The spousal fiduciary duty,” Dennis Fordham, accessed May 31, 2017

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Parents and grandparents generally feel fortunate when they have considerable assets to pass on to younger generations in their family. However, how can you assure that they’ll handle their inheritances wisely?

Even responsible people can lose perspective when they inherit a significant amount of money — spending it on things they had never even considered before. They can also become prey to unscrupulous “advisors” as well as friends and acquaintances asking them to invest in a sure-fire-success business venture. Both can ruin their lives and leave them worse off than if they’d received nothing.

Many people these days want the inheritance they leave to their loved ones to be about more than money. They want to pass on the values they hold dear and the lessons they’ve learned. How do you incorporate those into your estate plan.

One way to do this is by creating an “incentive trust.” You designate a trustee to make distributions to the beneficiary based on the requirements you designate.

For example, you may want your grandchildren’s inheritances to be used only for their education, to buy a home (perhaps within a certain price range), to start a family or to create a business. Some people designate a higher inheritance if the beneficiary graduates from college.

It’s up to you as the grantor to place whatever terms on the trust you choose, providing that they aren’t so nonsensical or wrong-headed that a court won’t enforce them. For example, a judge likely won’t uphold your wishes that your grandchild marry a person of a specific race in order to receive his or her inheritance. It’s also good to discuss your reasoning behind those terms with your trustee and your beneficiaries, if they’re old enough.

Of course, sometimes people’s lives are beset by unforeseen circumstances such as a health crisis or the loss of a home due to an earthquake or other act of nature. You can designate in your incentive trust that the funds can be disbursed for such emergencies.

Your California estate planning attorney can work with you to set up an incentive trust to help ensure that your loved ones can benefit from your hard work and good fortune and that your values will be passed on to future generations — even those not yet born.

Source: Huffington Post, “Passing Values, Not Just Money, via Incentive Trusts,” Steve Cook, accessed May 24, 2017

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When a family member dies, even the closest of siblings can become estranged, especially when money or property is at stake. Probate issues have a way of bringing out siblings’ stubbornness and reviving contentious emotional discussions as well. Because most siblings don’t find themselves involved in probate litigation until they reach their 50s or 60s means that there’s a lot of emotional baggage.

There are a number of contentious issues that ultimately end up with siblings looking to litigate a case in front of a probate judge. Perhaps one of the most common reasons is a child attempting to challenge his or her parents’ will. This most often occurs when a sibling has been named executor of their parents’ estate, yet has failed to adequately perform their responsibilities to its beneficiaries.

Litigation that occurs because of this most often does so because a will or trust treats one child differently from another. Parents may elect to treat one child differently from another simply because one child is deemed to be more well off than another or because one has become estranged geographically or psychologically.

Parents can greatly mitigate any potential risk of a will or trust being perpetually stuck in probate if they simply engage in adequate estate planning while still alive.

If a will or trust is challenged, one argument that a child may use against another is that they had undue influence over the parent. That child may have even inappropriately used a power of attorney in a way that gave him or her added advantage when his or her parent was in one of the most vulnerable states. At the same time, they may have done everything right.

Another argument that a sibling is that the executor of the estate made decisions that were not in the best interest of the beneficiaries, but instead self-serving. Or, if a parent dies without a well-planned estate, or intestate (without a will), disputes can arise over who gets what. These are two other examples of situations that may end up in probate litigation.

If you and your sibling are not seeing eye to eye with respect to the execution of your parents’ will, then you may need to seek out the guidance of an experienced Los Angeles probate attorney.

Source: www.metrowestdailynews.com, “Sibling rivalry in probate disputes,” Patricia Davidson, accessed May 19, 2017

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You always meant to get around to writing a will, but you never did. Now, in the aftermath of your death, your family is learning that not having a will can cause trouble. When you die without a will, the laws of intestate succession determine who inherits your estate, and it may not be whom you expect.

The first thing that the laws look at is whether or not you were married. In most cases, when one spouse dies, the spouse’s community assets are transferred to that individual. Other assets, including separate property, only go to the widow or widower if there are no children, parents, brothers, sisters or other direct relatives. If there are, then the separate property goes to those individuals before the spouse.

If you have a child, then half of your separate property goes to your child and half to your spouse assuming there are no other heirs. If you have more than one child, the separate property in the estate is split up with your spouse receiving a third before the other two or more children receive the remaining assets. In these situations, your spouse receives assets only when there are no other direct heirs, like your parents or siblings.

It can become complicated if you die intestate, because your spouse may not end up receiving the property you expected he or she would. Much of the property is doled out to others in the family and potentially to people you did not want to be the recipients of your assets.

How can you avoid dying intestate?

Make sure you speak to your attorney about creating a will or living trust. A will can make sure your wishes are known long before your death and that all your property goes to those you wish to be the beneficiaries. A revocable living trust can be altered as you age, so there’s always a document in place to let the family know whom you want as the recipients of your assets.

Your attorney can help you create either of these documents to give you peace of mind about your estate.

Source: Nov. 30, -0001

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If you’re drafting your estate plan with the intention of leaving some or all of your assets to your adult children, it’s essential to talk to them about their inheritances once you’ve determined what you are going to leave them. For many families, this may be the first time that parents and kids have discussed just how much there is in the estate. Many kids are surprised to find that their parents, whom they’ve always seen as tight with a buck while growing up, have actually amassed a good deal of money.

For many parents, it’s essential that their assets remain in the biological family. That may not happen if the kids get married — and divorced. An ex-spouse can end up with a significant amount of your child’s inheritance if it’s not protected.

Fortunately, there are steps you can take in your estate planning to help prevent that. However, your kids need to do some things when they marry to help ensure that your wishes are carried out.

Any inherited assets need to be maintained as separate property. If, for example, you leave a house to your child, only his or her name should remain on the title. Adding a spouse to the title will make it marital property. However, if the other spouse’s money is used to refurbish it, that can also complicate matters. If your child uses his or her inheritance to purchase a home jointly with a spouse, it can also be considered marital property.

Of course, any inherited assets placed into a joint account with a spouse also become marital property. That’s why special care has to be taken not to commingle separate assets.

A prenuptial agreement can help protect an inheritance. However, again, spouses have to take care not to combine assets in any way that can make them marital property unless they are prepared to share them with their spouse in a divorce. Here in California and other community property states, that means splitting them 50/50, even if one person contributed significantly more to a property, account or other asset.

If you’re leaving a sizable inheritance to your adult children, it’s important to get financial as well as legal guidance for them so that they can protect that inheritance for themselves and future generations.

Source: WTOP, “How to protect inheritances for future generations,” Nina Mitchell, April 19, 2017

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There are a lot of things that you have to handle when a loved one passes away. You may have to make the final arrangements. You might have to handle other duties, as well.

If you are the executor of the estate, or even if you are just a concerned heir, you will have to pay close attention to what is going on with the estate. The more you know, the better you are likely going to handle everything that is going on during the probate process.

Is there a will in place?

If there is a will in place, the will dictates what happens to the assets that your loved one left behind. While wills are usually pretty solid, there are some instances in which this might not be the case. If your loved one died without a will, he or she died intestate. This means that property is distributed according to the laws in California that govern these estates.

Does the estate need to pay any bills?

There are some bills that the estate will pay. You should seek assistance with this because there is an order that you must follow when determining what must be paid. If the estate can’t cover the bills, the heirs won’t usually have to do anything to cover them. It is important that you find and account for all of the assets that are part of the estate so that you have an accurate account of what you can count on if there are bills that need to be paid.

Is any point in the estate plan that is being disputed?

It is possible that points in the estate plan might be disputed. You have to handle these situations carefully, so make sure that you understand what responsibilities you have in these cases. There are various reasons why a person might not agree with the estate plan. Trying to find out the reason and determining if there are any steps you can take to rectify the situation might be appropriate. Make sure that everything you do is handled in compliance with applicable laws.

Are all heirs accounted for?

You might have to search for heirs listed in the estate plan. This often occurs if there are heirs that have moved away. While most heirs can be found with a little work, there are some instances in which this doesn’t occur. You should make sure that you find out what you should do if you can’t find heirs who are listed in the estate plan.

Source: Nov. 30, -0001

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If you’re a Californian doing your estate planning, it’s essential to understand that it can, and maybe should, involve more than a will and other documents that detail how you want your assets disbursed after your death. For example, you can designate your wishes for your health care ahead of time in case you are unable to speak for yourself later.

California has something called an advanced health care directive. It lets you designate what type of procedures you want medical professionals to take to prolong your life and under what circumstances you want life-extending measures to end.

As one California estate planning attorney notes, these directives often address what people want to happen if they are going to be in a persistent vegetative state for the rest of their lives. “Do you want to be kept alive forever, or do you want to have life-sustaining measures terminated? Many people don’t want to be kept alive if there is no hope of ultimately surviving.”

An advanced health care directive can also state what type of palliative care you want. For example, do you want to receive morphine that would ease your pain but possibly hasten your impending death?

Some people’s worst nightmare is something called “locked-in syndrome.” This is a rare condition where all voluntary muscles are paralyzed except for those that control the eyes. People who suffer from this are conscious and awake, with no cognitive impairment. However, they have no ability to move anything beyond their eyes. You can designate that should you end up in that state what you want medical professionals to do.

None of these things are pleasant to think about, of course. However, by codifying your wishes, you take the burden off of your loved ones of determining what, if any, measures should be taken to keep you alive. It also prevents the case from ending up in a court with a judge who doesn’t know you making the decisions. Your California estate planning attorney can help you draft an advanced health care directive as part of your overall estate plan.

Source: Fontana Herald News, “One very important part of an estate plan is a healthcare directive,” Samuel Ledwitz, April 27, 2017

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Estate planning attorneys are finding that people are increasingly drafting wills and other estate documents at younger ages than in the past. The unexpected deaths of so many celebrities last year got a lot of people thinking about their own mortality sooner than they might have otherwise. The widespread coverage of terrorist attacks and other violent events that costs people of all ages their lives can have the same impact.

Nonetheless, only about a third of all Americans had a will last year. If you’re seriously considering developing an estate plan, you’re already ahead of the game. You can save your family conflict and money after you are gone. You can also include documents to help ensure that your wishes for your health care and finances will be carried out if you become incapacitated and unable to speak for yourself.

There are a number of pitfalls both in the way that an estate plan is drafted and maintained and in other decisions that people make in conjunction with their estate planning if not done properly. That’s why it’s essential to have the guidance of a California estate planning attorney who can help you avoid as many of those as possible.

For example, sometimes people think it’s easier to go ahead and transfer one of their properties (either the family home or vacation home) to their children while they’re still alive rather than put it in their will. However, if that child files for bankruptcy, you could have creditors potentially taking your home.

Similarly, people sometimes transfer significant amounts of money to their children to help them avoid estate taxes. However, if you end up living another few decades, this could leave you without the resources you need in your old age.

Too many people develop their estate plans and then forget about them. A good rule of thumb is that you should thoroughly review these documents every three years, and of course more often if there are significant life changes like marriage, divorce, additional children or grandchildren or a new home.

Careful estate planning takes a lot of time and thought about what you want to leave behind. It may not be pleasant to think about, but after you’ve done it, you’ll likely feel a sense of ease that you didn’t have before.

Source: New York Times, “Wills Can Avert Family Warfare, but Have Their Own Hidden Traps,” Janet Morrissey, April 21, 2017

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