When a family member passes away, it is difficult to know how to move forward. Yet, it seems there are countless things you must do, often all at once. Among all the uncertainty, there are three important things you may wish to remember.

Do not avoid your emotions

Losing a loved one is one of the most difficult, stressful experiences you can face in life. The grief you feel may be overpowering, even debilitating. Many people might find it easier to suppress these complex emotions than actually feel them.

While working through grief is different for everyone, it will help to deal with these emotions directly rather than avoiding them. Obtaining professional mental health counseling to help navigate grief is recommended.

Begin probate

As we have discussed in previous blog posts, thinking about the probate process is the last thing you may want to do while you are working through your emotions. Even so, it is something that must be done. If the decedent’s estate is over $184,500, it involves the filing of a petition with the probate court after a loved one’s passing in California.

The person who files the probate is often the executor listed in the will. If there is no will, then someone must still complete this step to begin the formal probate process.

Depending on the details of your loved one’s estate, probate can be an extensive procedure. Just like it may help to seek professional guidance for your mental health, it can also help to obtain legal guidance to manage the tasks involved in probate.

Update your own estate plan

You may have to make changes to your estate plan after a loved one passes. For example, if your spouse who passed away had medical power of attorney on your behalf, you should choose someone new to be your representative if you become incapacitated.

Updating your estate planning documents and beneficiary designations may not seem urgent during this time. However, it is something to keep in mind and address with your attorney in the near future after losing a loved one.

Posted in Probate | No Comments »

As you may know, probate is the process of proving if a loved one’s will is valid before beginning the administration of their estate or if a probate, without a will is required. There is often a lot of anxiety surrounding this process.

However, some people might wonder if probate is even necessary. To determine the answer, it often helps to understand when it may not be a requirement. Here are some of the critical factors that will determine if probate is not required.

The value of the estate

In California, if the value of your loved one’s estate is less than $184,500, then the formal process of probate may not be necessary. Of course, there are other details you must consider in these situations, as The Judicial Probate Branch of California explains, but the estate may qualify for a simplified process either via another type of petition or by completing other appropriate forms outside of court if the value totals less than $184,500.

The estate planning tools used

Perhaps your loved one specifically, strategically planned to avoid probate. For example, probate may not be necessary if he/she made use of:

• Trusts
• Beneficiary designations
• Changes to deed

These tools can pass property to beneficiaries directly. However, you or your loved one must prepare very carefully using these tools. It will help immensely to obtain experienced guidance to ensure there are no issues in the plan to avoid probate.

How your loved one owned property

If your loved one owned property jointly with a spouse or another family member, that may also mean that assets will not have to go through the probate process.

Regardless of whether you are creating an estate plan, you are faced with the question “is probate required,” or if you are managing the estate of a loved one who’s passed away, it helps to obtain knowledgeable guidance from a legal professional.

Posted in Probate | No Comments »

One of a personal representative’s biggest tasks is reviewing their loved one’s estate and taking stock of the assets. This can be daunting, so here are some of the critical things you must know about this particular task during probate.

How long do you have?

You have four months to complete the inventory of your loved one’s estate after filing probate. That is roughly 120 days in which, according to California law, you must:

1. Compile a comprehensive list of their assets
2. Obtain the value of each item in their estate
3. File this inventory with the probate court

This time can pass faster than you think. It is critical to complete this process with care, to avoid mistakes and meet the deadlines. It is often helpful to seek legal guidance to assist you through this process.

What do I have to inventory?

It is not an exaggeration to say you must take inventory of everything in the estate. This includes, but is by no means limited to:

• Real estate property, including the decedent’s home as well as rental and/or any vacation properties
• Personal property, including furniture, vehicles, guns, jewelry and similar personal property
• Financial accounts, insurance policies and stocks

It is important to know that you must also take note of how your loved one owned the assets. Was it jointly owned with their spouse? Or did the decedent hold full ownership? This will be critical information for the probate court.

Don’t forget about debt

The debt your loved one owed is also a part of their estate – not just their assets. Therefore, you must also make sure you compile a detailed list of debts and creditors during this four-month period as well.

Taking a full inventory of your loved one’s estate can be a challenge. It will require you to be organized and pay close attention to detail. Navigating probate may be complex, but it is not impossible. It is often helpful to seek legal guidance to assist you through this process.

Posted in Probate | No Comments »

An estate plan helps ensure you can provide for the loved ones you leave behind. However, what happens to your furry friends?

You cannot leave money or property to your pet like you would a person, even if they feel like just as much of a family member. But you can set aside funds for your pet’s care. That is precisely what a pet trust is for.

How does this trust work?

A pet trust allows you to:

• Designate funds that do not exceed $40,000 for the pet’s care, including veterinary visits and daily needs, such as pet food and toys
• Choose someone to be the trustee, who may also be the person who will care for the pet when you are no longer able to do so

You can also include particular instructions for the pet’s care. Remember, an estate plan – which may include  pet provisions  – is meant to reflect and protect your wishes. You can make customized arrangements for your pet, even if you cannot leave anything to animals directly.

Do you need a pet trust?

The answer to this question generally boils down to your personal choice. After all, you can address the matter of your pet’s future in your will. This generally involves choosing someone as a caretaker or guardian of your pet in your will. However, you cannot leave funds for your pet’s care using this tool. You will need to provide for that in your trust. Additionally, even if you have a verbal agreement with a family member or friend to take care of your pets should anything happen to you, it is always a good idea to get it in writing.

If you have a beloved pet that you wish to protect even after you are gone, it is a good idea to have a lawyer create a pet trust for you or add provisions in your trust for your furry friend. You can prepare for the future and protect all of your family – including the pets.

Posted in Estate Planning | No Comments »

A loved one’s passing can leave you with a mess of emotions. It may also leave you with a lot of uncertainty, especially if you are managing your loved one’s California estate as a personal representative.

One issue that can lead to a lot of questions is the matter of paying off your loved one’s debts. Debt in and of itself is a stressful thing to manage. Here are some important details to know about this particular aspect of probate.

The estate generally pays debts

Usually, the payment of your loved one’s remaining debts comes from your loved one’s estate. You will have to arrange the actual payment, but the finances will come from the estate of the deceased, not your pockets.

Of course, there are certain cases where a living person may be responsible for paying the debt, such as if it was a joint loan or joint credit card. The individual on a joint account should inform the creditor about the passing of your loved one, but then they will be liable for paying the debt from now on.

Make sure any claims are legitimate

Scammers prey on the vulnerable. Probate can be a confusing process on top of immense grief – which makes it a common target for scammers. Therefore, there are a few risks you should watch for, including:

• Debt scavengers, trying to collect on a debt that is no longer effective or belonged to someone else
• Collectors who falsely claim your loved one owed them a debt
• Friends or family members who come forward with “verbal agreements” for payments

It’s important to handle every claim and creditor carefully. Look at all the information regarding the debt, and consider seeking legal guidance before taking any action.

Do not overlook anything

One of the reasons probate is so stressful is that there is no room for mistakes. If you make any errors, it could result in serious challenges and legal claims after the fact.

This is another reason why it is often beneficial to seek legal help during probate. A legal professional can help you avoid any of these future issues while managing current challenges effectively.

Posted in Probate | No Comments »

Your loved one named you as the executor of their will. This is an important role, but if your loved one never informed you of this it can come as quite a shock. If you find yourself in this position, here are a few things to consider.

Evaluate the executor’s duties carefully

Managing your loved one’s affairs and administering the estate involves a long list of tasks and duties. These include, but are not limited to:

• Taking a full inventory of your loved one’s estate
• Paying any remaining debts from their estate
• Completing a considerable amount of paperwork

It is critical that you take a look and evaluate all of the duties involved. You should understand precisely what you will have to do in this role before taking it on. Of course, an experienced probate attorney will be able to help and guide you to ensure all required administrative tasks are properly completed. Even so, you should still make sure you are both able and willing to take on these duties.

Remember: You can decline

Even if your loved one nominated you as the executor of their will, that does not mean you have to take on this role. You have the option to decline.

This can be a stressful prospect. After all, you do not want to let your late loved one or your living family members down. However, in these cases you should put your loved one’s wishes and legacy first.

In a previous blog post, we addressed some of the questions you should ask yourself when faced with this role. If you truly believe that taking on this role would be too much, too stressful or even outside of your capabilities, it is important to:

• Communicate your decision to the relevant parties as soon as possible
• Obtain and execute the proper paperwork to decline the role

You should not feel shame or guilt if you feel that you cannot fulfill this role. It is no fault or failing of yours. Acting as an executor and personal representative can be a stressful job. It might not be the right fit for you – and that is okay.

Posted in Probate, Trustees Executors & Fiduciaries | No Comments »

Managing your late loved one’s estate can leave a lot on your plate. If their estate has to go through probate, in addition to navigating all of the strict requirements and technicalities of the probate process, in many cases, your loved one’s home will need to be sold during the estate’s administration.

If the home does need to be sold during the probate process, it can be difficult to know where to start. After all, the requirements, and rules for selling a house in probate are much different than those associated with selling a home in a normal sale. So, what should you know?

First: Know the rules

As stated above, selling real estate in probate is not the same as selling a house in a normal sale. There are strict rules and procedures that must be followed in probate that do not apply in a normal sale. The California Probate Code explains the specific steps required under the law to sell a house in probate. You should carefully review these steps and conditions beforehand to avoid any issues or mishaps during the process.

Among other things, with a probate sale, you may have to:

• Obtain permission from the probate court to sell the property
• Get the property properly appraised for market value
• Give notice of the sale in the local newspaper
• Ensure the probate court approves the sale before finalizing matters

These are key steps among others that you may have to take in a probate real estate sale. It can help to consult an experienced probate attorney as well to fully understand the steps  to prepare the home for sale.

How can you maximize the value of the property?

Your loved one treasured their home. Perhaps it holds a lot of sentimental value for your family, but that kind of value does not necessarily transfer to a real estate sale. So, how can you make the most of the sale?

Part of this will depend on considering and evaluating how much time and resources would need to be committed to maximizing the value, and whether it would prove fruitful. For example, as we discussed in a previous blog post, you may wish to consider the pros and cons of:

• Selling the property as-is
• Potentially investing in some renovations

Certain renovations can increase the value of the home, but they may not necessarily produce a positive result relative to the cost of completing those renovations. You must weigh your options carefully. It can also help to speak with a real estate professional to determine steps you can take to maximize the value of the sale and whether it is advisable to do so relative to the costs associated with those steps and the market conditions then in effect.

Posted in Probate | No Comments »

You may hear about limited conservatorships frequently, but what exactly are they? Here are some of the most common questions answered for you.

What is a limited conservatorship?

A limited conservatorship gives a person – most often a parent or guardian – some specific decision-making abilities for a loved one with developmental disabilities when they are an adult.

How do they work?

As we have discussed in a previous blog post, a limited conservatorship would allow the conservator specific rights regarding decisions in the conservatee’s life. These include but are not limited to decisions regarding their:

• Medical treatment
• Financial matters, if there is an estate
• Living arrangements

It is critical to note that of the seven rights a potential conservator wishes to obtain, only a few may be granted. The courts will evaluate each and every category to determine if it is necessary and appropriate for the conservator to have decision-making power in that specific situation.

How do you start one?

Generally, a proposed conservator must:

• Pay the necessary fees, unless the court approves a waiver of said fees
• File the necessary pleadings
• Provide documents and evidence
• Attend the hearings

As we stated above, the court will consider many factors to determine whether or not to grant the limited conservatorship. Of course, the process is much more detailed. It is a good idea to seek legal guidance to learn the specific procedure of establishing a limited conservatorship.

What should potential conservatees know?

Conservatees have rights throughout this entire process. You have the right to have a legal representative, change the conservator and terminate a conservatorship if appropriate.

A limited conservatorship should be just that – limited. It should not hinder the conservatee or their independence.

When should you consider a limited conservatorship?

Parents or guardians who have a child with developmental disabilities should consider a limited conservatorship when their child nears the age of 18, or the age of becoming a legal adult. Your goal should be to protect their independence while still protecting them.

If you have more questions about limited conservatorships, it may help to seek legal counsel.

Posted in Conservatorship | No Comments »

In previous blog posts, we have discussed the complexities that can arise in probate matters for blended families. Being a child of divorced parents, you may already know just how complex matters in your life can become in these cases.

When one parent passes away, you not only feel overwhelming grief but worry. What happens now?

How will probate work?

The administration of a parent’s estate depends heavily on whether:

• There is a will: If the parent who passed away had a will, then you or the named executor will follow the instructions and guidelines to administer the estate included within the will, given that the probate court validates the will.
• There is no will: Without a will, your parent’s California estate is subject to intestate succession rules. Under these rules, a child could inherit everything if there is no spouse and no deceased children leaving issue. Or, if your parent did remarry, then the estate is divided between the child or children and the new spouse.

A valid will is helpful, but conflict may still arise.

Important Note: If the parent who passed away did not update their beneficiary designations or explicitly address changes in a divorce settlement, then the surviving ex-spouse could potentially have a claim to assets in the estate. This could create additional complications between the ex-spouse, the widow, and the decedent’s children.

That doesn’t factor in the emotions

The documents and legal procedure may be fairly straightforward – especially if your parent had an estate plan. However, it is often the emotional aspects that are the most complex. As a child of divorced parents, you may feel caught in the middle between your other parent and the widow of your deceased parent. This stress could compound if you have other siblings or family members.

Posted in Probate | No Comments »

Living in California, and particularly in Southern California, is a unique experience, with the weather, beaches, traffic and show business influence. What you might not realize is that a fairly unique California law can impact your estate plan, probate and trust administration.

California is one of just nine states with community property laws. The issue of community and/or separate property is most commonly associated with divorce, specifically property division between spouses, but also applies to probate matters as well. If you live in California — or just own assets here — it could have a big impact on how your assets will be distributed after you pass away.

Community property and estate planning

When a California couple gets divorced, each spouse is entitled to half of the couple’s community property (with some exceptions) and a spouse may be entitled to some of the other spouse’s separate property (things that belong to one spouse only).

When one spouse dies, unless a will or trust states otherwise, the surviving spouse generally is entitled to 50 percent of the deceased spouse’s assets. There are also income tax implications that don’t apply to property owned in marital property states.

Estate planning that fits your life

Like many Americans, you and your spouse may have lived in several states during your marriage. You might have lived in California your entire life, or maybe you moved here a few years ago after living in one or more non-community property states. Couples who acquired real estate, investments and other assets across multiple states need an estate plan that factors in how the spouses acquired the assets and how different states handle probate and inheritance. If not addressed, complications could arise that delay distribution of the assets or there may be unintended tax consequences.

These are all issues that are best addressed with an experienced probate and estate planning attorney.

Posted in Estate Planning | No Comments »