Two things in life are certain: death and taxes, which is probably why probate is a word that makes most people cringe. It forces you to consider your own mortality or comes into play after the loss of a loved one. You might find the term unfamiliar or confusing, not understanding what it actually means or what the process truly entails – and no one faults you for this.

In California, there are probate laws in effect that pertain to assets and estates valued more than $150,000. Monies and properties (not homes, boats, or motor homes) valued under $150,000 can often be attained by an heir or beneficiary via an affidavit and avoidance of court. However, these processes are neither easy to follow nor the only ones.

There are many forms and stipulations to those forms that need to be adhered to. Thus, finding a lawyer that is experienced and fully educated on California probate law and its practices is highly recommended by legal, financial and other professionals.

What are some of the basics of probate?

• What are probate assets? A probate asset is an asset that is held in the name of the deceased only. It is not counted as a probate asset if there are other means of determination for the beneficiary (ies), i.e.. life insurance. If not, it will be added to the estate and counted as a probate asset. Formal probates can often be avoided if there is a surviving spouse in place. In that case, the spouse can file a spousal property petition.
• What is an executor or administrator? An executor is the person that is fully in charge of managing the probate. Some of these details include bill payments, filing taxes and distribution of the estate once the court order has been attained. Usually, the executor is named in the will. In the case where there is no will, or if the executor(s) named are unwilling to perform the duty or deceased, a court can appoint one, usually the closest relatives to the decedent take priority in becoming the executor or administrator for the estate.
• How does a probate case begin? To begin a probate case, a petition must be filed in the Superior Court of the county of the deceased. Most often, the petition is prepared and filed by the attorney of the perspective executor, administrator, or personal representative. The petition in question will include information on the deceased, the executor or administrator, living heirs and beneficiaries. In addition, the size of the estate and other information – like whether bond will be required – are included in the petition as well.

Finding the right California probate lawyer is essential in probate cases. Laws often vary from county to county, so having a county-specific lawyer is key. With a probate attorney in your corner, you can have assurance that the properties or monies in question are obtained more quickly (if you are the rightful heir or beneficiary) than attempting to do so alone. Attorneys will also handle the more complicated matters at hand, like finalizing debts, disposal of property and preparation and filing all of the necessary forms and affidavits that are needed to finalize your probate case.

The Probate House L.C. is a well-known and well-respected probate law firm in Torrance, California. Our attorneys not only provide detailed assistance to individuals, but they do so with a level of compassion, care and personal attention that is not always a part of skilled legal representation.

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Your loved one has passed away. Whether the passing took you by surprise or was expected after a long-term illness, it isn’t easy to deal with their loss. When the only thing you want to do is mourn their death and look to the future, you have to think about their estate. You have to think about probate, something that can be very frustrating and confusing, particularly if this is the first time you have had to deal with the issue.

Probate law in California can be a conundrum. Attaining a lawyer is highly suggested, as they will be able to prepare and file forms and even keep the case out of court, if possible. But what do you do if the case belongs in probate court?

What if my case belongs in probate court?

Let’s look at the California court’s instructions. If a case belongs in probate court, the custodian of the will (person who actually has the will in hand at the time of the person’s death) must take the original will to the probate court’s office. The custodian must also send a copy of the will to the executor. If there is no executor to the will, or they cannot be located, the will must be sent to the beneficiary that is named in the will.

The custodian has thirty days (max) to take these steps, or they can be sued for damages. If there is no will, the court will appoint an administrator, that will be in charge of managing the state during the process. To become an administrator, you have to file a Form DE-111, a “Petition for Letters of Administration”. The administrator for the will is usually either the spouse, partner or relative of the deceased.

A “Petitioner” will start the case in court. After these steps are followed and the probate case has been filed, there will be a hearing date assigned by the clerk. The petitioner at that point is responsible for giving notice to anyone that may be legally obliged to part of the estate. This is true for surviving family members, even if they have not been named in the will.

What if the deceased left $150,000 or less?

If you are legally granted the right to personal property, including stocks or a bank account and the amount is less than $150,000, you may be able to avoid court altogether. The property can be transferred to your name and the value of the property will be worth what it was on the date of the property holder’s death. Property does not include boats, cars, mobile homes or any property outside of California. There are many stipulations as to what is included and what is excluded.

First, the amount of the property has to be assessed and valued so that it is, indeed, worth $150,000 or less. If the total value is that amount or lower, after 40 days have passed since the death of the property holder, you can write an affidavit to have the property transferred to your name. This form can be attained through a lawyer, or a bank.

There are terms to filing the affidavit properly, including not having the petitioner mail the form, assuring that you are, indeed the beneficiary with the right to the property, giving notice and making sure that the case is not already in probate court.

Confused by this most basic outline of California rules and statutes? You are not alone.

The forms and guidelines necessary to go after property or monies that you have inherited can become frustrating and confusing. Only rely on the advice of a lawyer, given based on your individual case.

The best practice is to hire an educated and experienced California probate lawyer that can help you throughout the entire process.

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People often associate the word “conservatorship” with those who have been deemed incapable of handling their own money. In fact, a court may also agree to a conservatorship for people who are not able to properly care for themselves in other facets of their life, such as food, housing and medical treatment.

Back in 2008, pop star Britney Spears’ life seemed to be coming off the rails. She was regularly in the tabloids for her erratic behavior. Her manager at the time was alleged to have not only taken a substantial percentage of her income but also to be supply her with drugs.

That year, Spears’ father Jamie and an attorney went to court to put her under a conservatorship, with the two of them as her conservators. It was approved based a mental illness (the exact nature of which wasn’t disclosed) and substance abuse.

In the ensuing eight years, Spears seems to have turned her life around. Now 34, she has a $35 million residency contract at the Las Vegas Planet Hollywood, and she’s got a new album coming out. She regularly posts Instagram photos of her two sons and her, all looking happy and healthy.

Therefore, it may be surprising to learn that the conservatorship is still in effect. Indeed, some people in the media are questioning why it is and if her father should still be controlling her considerable wealth.

Interestingly, although her sons are included in the conservatorship, Spears appears to be the one making the parenting decisions for them. That’s a rather unique situation for someone under a conservatorship. However, as one attorney notes, it seems to have worked out for her.

Conservatorships are generally temporary and subject to court-approved renewal, particularly when they are spurred by situations such as drug abuse. Therefore, the singer could likely choose to contest hers and do so successfully. If and when she does that remains to be seen.

If you have a family member or loved one whom you believe needs the protection of a conservatorship, an experienced attorney can provide advice and help guide you through the process.

Source: Fox News, “Will Britney Spears ever be treated like an adult?,” Blanche Johnson, May 11, 2016

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Did you know that Los Angeles County holds a monthly auction to sell unclaimed possessions of people who have died? These people either had no will (at least none that could be located) or had a will, but none of the heirs could be found or were alive. Further, no friends or family members claimed their belongings.

When this happens, the county stores the belongings for a period and then auctions them off. It recoups the costs of storing and auctioning the property and gives the rest to the state.

Most people would probably prefer that the state not end up with their property. However, too many people give little consideration to what will happen to their belongings after they die. They either don’t want to think about it or figure that one way or another it will work out. However, if you don’t have an estate plan — even a simple will — this is exactly what can happen.

Some people do have an estate plan, but they fail to update it over the years. In the meantime, heirs can die or move away and be difficult to locate. If your estate plan makes no alternative provisions, you have no say in where your assets end up.

Even if you have no family members or close friends to leave your property to, wouldn’t you prefer that a worthy charity get them? A local church, school or youth organization could make good use of even items of relatively little value. Many non-profit organizations take donations of household items and sell them in thrift stores to raise money. Animal rescue groups accept donations of towels and bedding. The options for letting your possessions benefit others after you’re gone are seemingly endless.

Having an estate plan doesn’t have to be an expensive, complicated procedure, particularly if you have only a simple will. However, it’s essential to keep it up-to-date and to make sure that it’s easy to locate after you’re gone.

If you have family or a close friend or caretaker, make sure that someone knows where to locate your documents and who your estate planning attorney is. If you have no living family or close friends, keep your estate planning attorney’s card in your wallet. These simple steps can help ensure that the state doesn’t inherit your assets.

Source: The Pasadena/San Gabriel Valley Journal, “Your Unintended Heir – The State,” Marlene S. Cooper, May 11, 2016

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Trusts are a key element of many people’s estate plans. Often they are used to put money or other assets aside for a child or grandchild until they reach a certain age or other milestone.

For people who have children or other family members with mental or physical disabilities, they can be used to ensure that they have the financial resources they need for their care and that no one can misuse those assets. These are called special needs trusts.

These trusts are often established to manage the beneficiary’s assets when they aren’t able to do so themselves. It can be a place to safeguard disability benefits, government assistance and/or the settlement from a lawsuit if someone was held liable for the person’s disability. If and when the beneficiary inherits money, that can be placed in the trust.

The trustee, or person who manages the trust, is often the person who set it up. However, another family member may be designated the trustee. If a family member isn’t able to be the trustee, a court will appoint a third party to take on the responsibility.

Of course, the primary advantage of a special needs trust is that your loved one’s assets are in a safe place where they can be used for medical care, therapy, education, home health care, residential care and other needs. They are under your control or that of someone you trust who won’t take advantage of the beneficiary. However, they have the added advantage of being untouchable should the beneficiary be sued for any reason.

Although special needs trusts all have some similarities, each should be designed to meet the unique needs of the beneficiary and to follow the rules of the state. An experienced California estate planning attorney can work with you to set up a special needs trust for a loved one and to help you ensure that the trust will remain in good hands even if that loved one outlives you.

Source: FindLaw, “Special Needs Trusts FAQs,” accessed May 12, 2016

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As shocking as the death of music icon Prince last month at 57 years old was to millions of fans around the world, the reports that he seems to have left no will or other estate planning documents are also shocking to many people. Why would a multimillionaire with vast amounts of music that will earn money for years to come not have an estate plan to detail who gets his assets and the rights to his music?

Of course, one can only speculate about what his particular reasons were. However, failure to have a will is a far too common problem. The majority, and perhaps as many as almost two-thirds of Americans die “intestate,” or without a will. While Prince’s family and business partners may have a lengthy, expensive mess to sort out, so does any family on some level when a loved one dies intestate.

By not leaving a will, what happens to your assets depends on state law. There is a line of succession regarding what family members are entitled to an inheritance, usually starting with a surviving spouse and then children. In Prince’s case, it seems as though his siblings will be dividing his fortune. Of course, people could claim to be his children, further complicating things.

Many people don’t have a will because they simply don’t want to contemplate their own death. Others just assume that their family will work it out. Still others simply don’t care what happens to their money after they’re gone. Many people simply don’t believe that they don’t have enough assets to bother making a will.

However, what’s important to remember is that by not having a will, you put the burden and expense on your family to go through probate. Further, you basically hand over a portion of your estate to the government in fees and taxes. Lastly, you forfeit any say in what happens to whatever assets you have.

Even if it amounts to a few thousand dollars, would you rather the government get it or a youth organization, church or animal rescue group in your community that could put it to good use? A California estate planning attorney can help you draft a will and any other documents based on your own situation.

Source: CNN, “Prince’s will saga: dramatic but not surprising,” Danny Cevallos, April 28, 2016

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Saying good-bye to a loved one is never easy, but it is far more difficult when left with an unorganized estate plan, complicated assets and no direction. One daunting task involves closing their accounts. The methods of closing accounts are not uniform and in some cases, it can become a frustrating or even drawn-out nightmare.

Here are some things to consider if you are faced with canceling accounts for a loved one.

• Credit cards and bank accounts: Some companies are more sensitive to grieving survivors. Discover even has a special department dedicated to handling the closing of accounts for deceased individuals. Other companies are not so friendly and unless you are a co-borrower or joint account-holder, you may not be able to close the account meaning it will go to probate. An attorney can handle this process but only if you have retained one.
• Mortgages: What about the house and property? If there are two names on the mortgage, then it would generally revert to the survivor, but the death should be reported so that sole ownership can be established. Again, different companies can have their own procedures and it is in your best interest to contact the company in question to ask about their policies.
• Student loans: In this day and age, student loans seem to follow a graduate for the rest of their lives. Federal student loans are canceled and remaining debt discharged if the borrower dies. Private student loans are an entirely different story, so it is a good idea to explore the policies for your loved one’s student loans.
• Utilities/services: Complaints about poor customer service and frustrating process involving utility and other service companies are not without basis. Canceling services due to death is no exception. Some companies even require the survivor or estate to pay fees for the cancelation. It can also be a challenge to get the necessary information to the correct person.
• Social media: It can be difficult to see your loved one’s picture in your Facebook feed the same day you attended their funeral, but you also have to worry about somebody accessing and using the profile. Many social media platforms have devised options for somebody else to access their accounts in the event of death. Facebook allows users to designate one “legacy contact” via the Security menu. It can also allow you to keep a profile up (but regulate use) for those who want to leave messages or share stories.
• Digital assets: What about that extensive Kindle library or all of those iTunes songs? Consider the photos uploaded to photo-sharing sites as well. It is important to know how much of this can be passed on to an estate and how much simply reverts back to the source. Books and music do not necessarily pass on to heirs but photos and emails might. It is important to look into the terms of service and keep a record of digital property as well as how to access all of it.

The bottom line is that closing accounts under these circumstances may not be clear cut or very simple. Estate planners, administrators and financial advisors can help you and your loved ones create a plan to hopefully make it easier on everyone.

Source: Consumerist, “The Grim But Necessary Art Of Closing Accounts For Dead Family Members & Loved Ones,” Ashlee Kieler, March 31, 2016 

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Increasingly, couples are choosing to postpone marriage until later in life or not marry at all. While cohabitating partners may feel married, in the eyes of the law, they aren’t.

Here in California, common law marriage isn’t recognized. That means that no matter how long you and your significant other have lived together, the two of you aren’t entitled to some of the benefits you would automatically receive as a spouse when the other one died.

Therefore, it’s essential that if you want to ensure that your partner is provided for after your death, you have a solid estate plan. It can do more than detail how you want your assets distributed. You can include documents that give your significant other the right to make financial and medical decisions for you if you are unable to make them yourself. An advance health care directive can let you detail your wishes regarding things like under what circumstances to discontinue life-sustaining measures.

An estate plan can also help all of your loved ones avoid the stress and expense of going through probate court. If your family ends up having to go through probate, under the law, they don’t have to notify your partner since you had no legal relationship.

Which documents you include in your estate plan will depend in part on the amount of assets you have. Your California estate planning attorney can help you determine which documents you should include based on that and what you want to accomplish with your estate plan.

Generally if you have assets (including your home) totaling more than $150,000, it’s best to set up a revocable living trust. If you have a home and you want your partner to keep that home after you die, it’s essential to designate that. Otherwise, family members could literally force him or her out.

While most people would like to believe that their family and their partner will work things out amicably if they die, too often that doesn’t happen. An estate plan helps provide insurance that your wishes for your significant other are carried out after you die. It also allows you to designate charitable organizations and other beneficiaries to whom you’d like to leave some money. Finally, it will make things easier for all of your loved ones after you’re gone.

Source: Huffington Post, “Estate Planning for Unmarried Couples,” Alexandra Smyser, accessed April 28, 2016

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Trusts are an important part of many Californians’ estate plans. However, drafting a trust or other estate planning documents is rarely a “one and done” situation.

Assuming that you haven’t waited until you’re very old and/or ill to do this important planning for your legacy and your family’s future, you’ll likely need to make some amendments over the years. Marriage, divorce, births, deaths and many other factors can necessitate changes to a trust.

It’s essential to remember that amending a trust has to be done correctly. Otherwise, the amendments aren’t legally binding.

Some people, believe it or not, actually write their changes on their original trust document and put it back in their safe or file cabinet, believing that this is all they need to do. In fact, not only are those amendments not valid, but writing on a trust document can invalidate the whole thing.

Amendments to trusts need to be done with the same legal formality as the original trust. Your California estate planning attorney can ensure that the amendments are made properly.

If you have a considerable number of amendments, whether all at once or over time, many attorneys will recommend that you “restate” the trust. That means that you incorporate the amendments into a new trust document. That makes it easier for heirs and others dealing with the document after your death. If you only have a few amendments over the course of time, those can just be maintained with the original trust and read along with it when the time comes.

Sometimes people make changes to their successor trustees, powers of attorney and others they’ve designated to carry out their wishes if they become incapacitated or die. Those changes also have to be made formally. Again, your family law attorney can assist you in doing this.

Remember that wills, trusts and other parts of your estate plan are legal documents and must be treated with the appropriate gravity. Not doing so can create confusion, conflict and added expense for your loved ones after you die, and no one wants to do that.

Source: The Pasadena/San Gabriel Valley Journal, “How to Properly Amend Your Estate Plan,” Marlene S. Cooper, April 13, 2016

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Being named the executor of someone’s estate is a bit of a mixed blessing. You may wonder if you should feel honored to be chosen, but there still may be some part of you that wonders why you were the one “lucky” enough to get the job.

In either case, this mission, if you choose to accept it, is yours. You need to get organized so you can tackle the challenge head on and do it right. If it isn’t something you believe you can take on, the court will reassign the task to someone else.

Preparing for the task

The job of an estate executor is a large and complex one, which is part of the reason why it can take a year or more to settle an estate. The best way to make any task less daunting is to get organized early. Sorting documents into folders is one way to get started. These folders should include:

• Vital records
• Legal papers: death certificates, will, trusts,
• Employee documents revealing benefits, pensions, etc
• Financial: keep separate accounts for the estate and personal accounts, statement proof of account closure, debts paid receipts
• Government: income taxes, government pensions
• Automobile: this folder should contain anything related to any automobiles the decedent owned, including related bills and auto insurance policies
• Estate management costs: you may be able to be reimbursed by the estate when you use your own money

Taking things one step at a time

If you are serving as an executor, it is important not to rush the process. While some may be anxious to get their inheritance, it is more important that the decedent’s affairs are settled correctly. When disputes happen, it only creates more delays. Developing a checklist can help. Things to consider include:

• Obtaining the death certificate
• Finding estate documents, including the will or trusts
• Consulting with an attorney and/or an accountant who is experienced with estate distribution
• Find letters of testamentary/surrogate certificates: these will prove you have the authority to use money in the estate to pay bills or open and close accounts as necessary
• Locate the assets listed in the will and create an inventory
• Determine financial obligations, including bills and taxes and make necessary payments

No matter what step you are working on at any given time, it is important that you protect your own interests as well as those of the decedent. Keeping meticulous records on all of estate related actions is crucial.

This includes recording dates you consult with the lawyer, talk to bankers, or work with other estate advisors. At some point, you could be asked about the details of the estate, and having this journal will help you to be prepared.

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