In recent years, we have seen Californians moving all across the country for a variety of reasons, deciding to live in a new state. Now a friend, one of your siblings, your parents, or other loved one has moved outside of California, with their California estate planning documents intact. You are named as successor trustee in their trust and/or as the executor in their will. You may be wondering, or want to know, that if your loved one dies in their new home state, will you have to travel there and go through the trust administration and/or probate administration in their new home state? Or is it possible to have the probate process started in a California court?

The Property Requirement

The first step is to determine if the deceased owned any property in California that would require probate. For example, real property with an appraised fair market value of $184,500 or more will need to be probated. If the decedent sold his or her California home prior to the move to another state, and if there are insignificant assets in California, then most likely a probate proceeding will not need to be initiated in California.

If you are unsure whether or not a probate will have to be opened in California, it is best to seek legal consultation with a probate attorney to determine whether it satisfies the statutory requirements.

The Probate Petition

If the deceased’s property is over $184,500 and the assets are not held in trust, bringing a probate petition  in front of the court is likely appropriate. You would hire a probate  attorney and file a petition in the appropriate court requesting that the probate process begin and you are appointed administrator, or executor if there is a will that names you.

Other Probate Requirements

If you succeed in obtaining California jurisdiction for the probate of your loved one’s estate, there are a few other important things for you to keep in mind. If your loved one lived in another state for some time, it’s likely that they have significant assets in the new home state. You may contact an attorney in the decedent’s home state first to find out whether you will have to file an ancillary probate in California. If yes, a California probate attorney will assist you in handling the ancillary probate.

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After losing a loved one, you and your family do not have to go through probate alone. While many people might be hesitant at first, hiring a probate attorney can make a significant difference in navigating the probate process – and preserving the assets of your loved one.

There are three primary ways a probate attorney can help.

They take things off your plate

Dealing with legal matters on your own, without the right knowledge, is likely the last thing you want to do after losing a loved one. There is barely time to grieve. If you are the named executor or if you are the person who will be filing a petition with the court to open a probate, you will have things to attend to. These may include planning a funeral or Celebration of Life, collecting information to prepare an obituary, contacting family members and friends and obtaining death certificates. The probate process involves meeting many deadlines. Hiring an attorney right from the start can help you manage the administrative aspect much more efficiently. An attorney can handle all of the legal matters.

Probate can get complicated

Even if your loved one had a will, the process of validating that will and administering all of the decedent’s assets can be complicated. Issues and disputes can arise with creditors or even family members. A probate attorney understands California laws and how the probate process works. Because of this knowledge, a probate attorney can help you navigate any complications effectively and reduce your overall stress.

You deserve support during the time after losing a loved one. Depending on the facts, a probate attorney may recommend that you file a petition immediately or take time to grieve and then come back to file the petition. This is pretty much fact-driven. A probate attorney allows you to focus on what is important and can provide both guidance and support through the often-stressful process.

Working with a lawyer allows you to focus on what is important

Above all, hiring an attorney familiar with probate lets you concentrate on the things that are most important to you. This could include your emotions as you grieve the loss of your loved one, your loved one’s memory and your family.

The aftermath of losing a loved one is never easy, no matter the circumstances. During this time, you should only have to focus on these most important things as you cope with this loss.

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Regardless of your age, you may experience a mix of emotions if your parent remarries. You become a part of a blended family and begin some sort of relationship with a stepparent and perhaps even stepsiblings. Even if these relationships are at times positive, the complexity of these relationships can come to the forefront when you lose a loved one.

In a past blog post, we discussed how probate can often become more complex when blended families are involved. Facing probate administration after losing a loved one can be stressful. Here are some things that children in blended families must be aware of as they manage this process.

Your biological parent

Probate may become a complicated process if your biological parent’s estate is probated.

What if your biological parents died with a will? This would allow your biological parent to leave specific personal assets to you and may allow for a larger percentage of their assets to go to you than the Probate Code provides.

If there is a Will, your biological parent could disinherit you, leave a small percentage to you or leave most assets to their new spouse. Your biological parent may have had a verbal agreement with the new spouse to assure that the real property be left to you on his/her death and may have conveyed this information to you. Or there may have been a verbal agreement that the spouse include you in the spouse’s will at the same percentage as his/her biological children. At the end of the day, when your stepparent dies, you may find that it is a very different distribution than what your biological parent intended or what your biological parent had hoped to achieve. As is often the case, your stepparent (the surviving spouse) may have decided to change his or her Will and not include you, despite having inherited a large portion of separate assets from your biological parent. This is a very sad and unsatisfying situation.

These are just some of the obstacles to inheriting assets from a biological parent.

Your stepparent

Even if you have a close relationship with your stepparent, stepchildren generally do not inherit if a stepparent passes away without a will providing for a distribution to them, though there are some exceptions under California law depending on your relationship.

In a blended family, both the passing of a parent and a stepparent can become a complicated matter. To prepare yourself, you must become aware of these issues and discuss them ahead of time with your biological parent and/or stepparent.

Complicated emotions

Losing a loved one is never easy. On top of dealing with a loss, blended families often involve complex relationships – with complex emotions tied to them. It is common for these relationships and emotions to become even more complex in the event of anticipating a probate proceeding after the death of a loved one. As a child in a blended family, you should be prepared for the potential of disappointments and disputes with:

• Stepparents
• Biological children your parent and stepparent had together
• Children your stepparent had before the second marriage that blended the family

These reasons above are why it is so important to discuss these matters long before probate begins. Conversations about a loved one’s estate plan are not always easy, but they are critical to avoid these stressful emotions and confusing processes.

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Anyone going through the probate process for a loved one has likely come up against this question. How do you manage debt that belonged to someone who has died? Although the exact answer will depend on the details of the situation, the following provides a general guide and starts with the first step — figuring out the estate.

Step 1: What is the estate?

The estate is the assets left behind by the Decedent. If the Decedent had an estate plan, such as a Will or Trust, either document will provide guidance as to what the estate is comprised of and who will benefit from the Decedent’s Estate. For example, a trust document may have a Schedule A attached showing the trust assets, and a Schedule B, showing the non-trust assets.

Other assets (including bank accounts, IRA accounts or life insurance policies) may be distributed to the designated beneficiaries directly, and may easily be collected by the named individual by providing a certified death certificate of the Decedent and by providing the beneficiaries Social Security number and/or showing his or her legal identification. More often, personal property items such as vehicles, jewelry, paintings and antiques are beneficiary-designated in the Trust document or in a Will.

Even if an asset is designated in the Trust, it may still require the use of a probate proceeding. And, regardless of whether there is a Will, if the gross value of assets in the name of the Decedent without beneficiary designations is over $184,500, pursuant to California law a probate more likely will have to be opened by the Fiduciary.

A trust is a legal document created by the individual (Settlor or Grantor) prior to death. The creator of the Trust, the Settlor, most likely designates himself/herself as Trustee and manages the assets that have been transferred to the Trustee. Once the Trustee is incapacitated and/or dies or resigns, the Successor Trustee takes over. At the death of the Trustee, the Successor Trustee handles the trust assets and distributes the trust assets as provided in the trust document. Retirement accounts, life insurance policies and bank accounts can be collected by the individual beneficiary. When opening a new account, the individual usually designates a beneficiary and alternate beneficiary when filling out the paperwork. Once the owner of the account dies, the transfer is essentially automatic to the listed beneficiary.

Step 2: What about debt?

Unfortunately, it does not just disappear. The estate itself is likely responsible for debt. The person managing the estate may need to use the estate’s assets to pay off creditors. There are specific state rules to help guide this process.

There are also instances when a creditor may expect another individual to take on this debt, such as if someone co-signed the debt. Also, in California, the Surviving Spouse may be liable for certain debts. But, even if expected to manage these debts, there are federal laws that protect against abusive debt collection efforts. The process can be difficult without the appropriate legal help.

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A power of attorney (POA) is a legal document that allows the creator (known as the Principal) to give another trusted individual (known as the “Agent” or “Attorney-in-fact) the power to make decisions about their finances. This is a powerful legal tool that is an important part of an estate plan — but how do we help our parents get their affairs in order? By first having our own POA prepared by our lawyer, so we can explain the benefit to our aging parent.

The following tips can help.

#1: Know what you need

California state law requires the creator of the POA be at least 18 and have the mental capacity to understand the consequences of creating the document. The creator (Principal/Parent) must sign the document and his/her signature must be notarized or signed by two adult witnesses who are not healthcare providers. (The notarization and witnessing is to make sure that the documents will be accepted in all States.) There are some nuances that can apply in certain situations, such as if the POA involves real estate (Specific Power of Attorney), or the creator is in a nursing home at the time of its creation.

The language used to create the POA guides its reach. It is a good idea to have legal counsel prepare the Power of Attorney. Most attorneys do not review a draft e-mailed in for review, whether using a fill-in-the-blank document or one written specifically to your Parent(s) situation. It is more cost-effective if the attorney prepares the document and is familiar with his or her documents.

The Principal, should chose carefully how little or how much power he/she wants to give to the Agent over his/her assets. For example, the Principal whether to allow gifting of monies to the Agent or to others. The three questions that the Principal will need to answer when going over his Power of Attorney include:

• Who is the agent? (adult child, family member or friend)
• How much power will they have over my assets? (Specific or General)
• When will the POA be effective? (Now or when the Principal becomes incapacitated)

#2: Know how to have the conversation

This is not an easy conversation, but the following tips can help:

• Start early. It is important to begin the process when the parent(s) still has or have the mental capacity to make these decisions.
• Prepare to go slowly. Some may be ready to dive into the conversation while others may be caught off guard. It can help to ask a few questions at a time instead of bombarding the parent with everything at once.
• Share a story. Ideally one of someone you both know. The failure to plan for these things can lead to catastrophic consequences including significant financial loses. The story could be a positive or negative. Either way it serves as way to transition into a conversation about your parent’s wishes.

It is best to have an Attorney experienced in the field of estate planning prepare the Power of Attorney along with other estate planning needs and help ease this transition to the next chapter of life. If you, the adult child, prepare the documents for the parents and name yourself as the Agent, that situation most likely may raise issues of undue influence and conflict of interest. It is best to make the appointment with the lawyer to help your parents out but do not attend the meeting for those reasons.

#3: Follow through

Once you have had these conversations, have your parents reach out to that professional and let the professional help your parents get the documents put together. Once they are ready, your parents will most likely let you know the location of the documents and let you know their wishes.

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Alzheimer’s disease and other forms of dementia are a serious health crisis in the United States. As seniors live longer and our country’s average age continues to rise, more and more Americans will be diagnosed with dementia in their later years. According to the Alzheimer’s Association, one in three seniors have some form of dementia at the end of their lives, and an estimated 13 million Americans are expected to be living with dementia by the year 2050.

One of the things that a well-craft estate plan can do for you is ensure that your finances and medical care proceed according to your wishes, even if dementia takes away your ability to handle these matters yourself someday. But a dementia diagnosis, or just signs of possible dementia, can lead to a will challenge in probate court after the testator passes away.

Alzheimer’s and testamentary capacity

One of the most common reasons for someone to challenge a will’s validity is a lack of testamentary capacity. In order to create or amend a valid will, the testator must be able to understand what is going on and the consequences of signing the will. This means the person should have been able to understand things like:

• The size and value of their estate.
• Who their heirs and beneficiaries are.
• What they are giving through their will.

A diagnosis of Alzheimer’s or similar condition does not automatically mean the testator lacked capacity. They could be in the disease’s early stages and still be able to understand the details and implications of their estate plan. Whether the testator had capacity at the time their will was executed could become the subject of a will challenge later on. Often, the person who files the challenge is not included as an heir or beneficiary or is unsatisfied with the size of their inheritance.

Will challenges are serious

Probate litigation can be expensive and time-consuming for everyone involved. It must be handled properly to try to honor the deceased’s final wishes as much as possible.

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Having an estate plan is a crucial way to preserve your legacy. However, to ensure it continues to provide the protection you want and need, you should consider reviewing and revising your plan after certain life events.

Relationship changes

When people leave or come into your life, it can be wise to update your plan. Doing so can minimize confusion and the risk that someone will contest your wishes or be in a position of control you would not want.

Thus, you can revise your plan before or after the following:

• Getting married
• Getting divorced
• Having a new child or grandchild
• Death of a loved one
• Estrangement
• Reconciliation
• Anytime

These events can affect appointments and the transfer or inheritance of your property.

Shifts in assets

Revising your plan after minor financial changes may not be necessary, but updating your estate plan can be smart when there are meaningful shifts in your assets.

To ensure your plan remains accurate and comprehensive, you can update it after events like:

• Retirement
• Buying or selling property
• Bankruptcy filing
• Receiving an inheritance
• Opening new accounts

After these events, the gifts and property you pass down changes dramatically, so revising your estate plan is a good idea.

Medical diagnoses

After being diagnosed with a serious health condition, updating your plan canbe crucial. Revisions can ensure someone you trust will be in a position to make medical or financial conditions on your behalf. You can also make certain that your planning reflects the provisions during any incapacity.

New perspectives

As we get older and go through new experiences, our perspectives can change. For instance, you may think differently about things like charitable giving, leaving your kids a certain amount of money or what you want your final arrangements to involve.

Therefore, periodically revising your plan can ensure your estate plan reflects your wishes, values and beliefs.

In light of these events, changing your estate plan may not be at the top of your priority list. However, doing so can make a tremendous difference in your future and the legacy you leave behind.

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Many people think probate is a nightmare. It can certainly be a stressful experience. While families process their grief and try to deal with their shock and emotions, family members and often friends want to know who is going to be the Executor (if there is a Will) or Administrator (if there is no Will) and what property and assets did their loved one leave behind.

Who are the beneficiaries or heirs and what needs to be done in probate court? (What needs to be done realizing that the Decedent may have failed to transfer assets to himself as Trustee of a Trust, designate beneficiaries in the trust, and/or failed to provide for a beneficiary in a Will document.)

It doesn’t have to be a nightmare for your family

One helpful step to avoid such a scenario is to prevent any surprise revelations within your estate plan. We briefly discussed this step in a previous blog post, but we will take a closer look to help avoid surprises – and potential disputes.

Issues to make clear

Your will or other estate planning documents are not the proper or best places to inform your family of major decisions.

Best practice: Do it before you have the lawyer draw up an estate plan for you. While creating such a plan, avoid secrets or surprises involving:

1. Who inherits your estate
2. Whether you are disinheriting a child
3. Your desire to provide small funds over time for one of your adult children rather than allowing them immediate access to the funds set aside for them
4. Limiting immediate access to the funds
5. Providing provisions that punish a beneficiary if he/she struggles with budgeting money or if they have had bad spending habits

Planning for inheritances

It might be tough to have that conversation about financial matters and your estate planning goals. But, it is important, to avoid springing your thoughts and decisions you made on your beneficiaries (as well as your non-beneficiaries) as a surprise during the probate process. Let’s say a parent wishes to disinherit a child, or perhaps establish a spendthrift clause for a beneficiary if they struggle with budgeting (and of course, he or she disagrees). This information is not something that a trustee or a beneficiary should learn during probate (and/or during a Trust Administration).

Intentions

You may convey and say one thing to a potential beneficiary but actually do something else. For example, you may, as a parent, inform your children that they would each have a share in your vacation home – but as it turns out your children discover that you did not plan on this and it is not the case. This would turn out to be a problem, such as causing a risk of conflict between the children and the remaining family members.  Make your intentions clear, both in words and in writing.

Avoiding surprises in situations like this can help prevent emotional strife for family members as well as complex legal challenges within probate, such as will contests. It can also help you protect your wishes.

Your plan does not have to be private

Estate planning documents do not have to be top secret. As much as your estate plan helps you protect your legacy and everything you worked for, it actually may be a good idea to be open about it and discuss the plan with your first with your lawyer and then with your family. Communication is the best way – and often the only way – to prevent misunderstanding.

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If you and your siblings do not get along, a parent’s passing can be not only sorrowful but stressful. Even the mere thought of facing probate and administering your parent’s estate can be overwhelming.

It is important to carefully evaluate your situation, and prepare yourself and your family as you move forward to reduce the stress you face.

If possible, have a conversation together

Every family is different. Therefore, every sibling relationship is different. Perhaps you and your sibling just do not click, or you constantly compete with each other in a rivalry. Both situations might make you worry about how the probate process will play out.

If at all possible, it is helpful to sit down with your siblings before probate begins to discuss your situation. It might be a difficult conversation. However, talking it out before probate can enable you to move forward as a united front in some cases.

For example, many cases of sibling rivalry stem from the parent’s behavior. Some parents might fuel the rivalry, show favoritism or encourage an unhealthy level of competition between siblings. Sitting down with your siblings, despite your differences, and discussing the situation might help you reach an agreement to work together.

Tips as you move forward with probate

Even if you have a conversation with your siblings, the risk of conflict remains. It is important to:

• Know what to expect: Get a basic understanding of the probate process, regardless of whether or not you are the appointed executor, trustee or personal representative. Knowing what the process generally entails in California can help you prepare.
• Understand the duties in probate: On that note, it is important to understand the roles and duties of an executor, trustee and personal representative, whether or not you take on any of these roles. This can help you protect yourself and your parent’s wishes, no matter the situation.
• Strategize conflict-resolution: Research and consider ways you can manage conflict effectively. Perhaps you might enlist a third-party, such as a mediator or family counselor to help you work through conflict in a productive manner. It may also help to speak with an attorney beforehand, to understand your rights and options moving forward.
• Mentally prepare yourself: If there is a risk of conflict, you should have a plan for how you will care for your well-being during this time. Make sure you have a support system, whether that is your own family or friends. Prioritize self-care during this stressful and emotional time.

It will not be easy to overcome years of rivalry or disconnect with siblings. However, it is important to know how you can move forward and handle any conflict in probate effectively.

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A loved one named you as the executor of their will and personal representative of their estate. It is important to understand the roles and duties that lay ahead of you.

There are many responsibilities that make up this role. So, it may be helpful to speak with an experienced estate planning and probate attorney to fully understand this role. However, here is a brief overview of the fundamental categories of duties.

Your duties under the law

The California Probate Code highlights the legal duties executors must adhere to, including fiduciary duties to the beneficiaries of the estate. It is critical to take great care when managing the affairs of your loved one who passed and make sure you work in the best interests of those who will inherit assets.

Your role as manager of the estate

A previous blog post outlined some of the things to consider when choosing an executor. As we discussed in this blog, the executor must manage and administer the estate. This includes, but is not limited to:

• Locating all of your loved one’s assets
• Taking inventory of these assets
• Valuing or getting appraisals for these assets
• Sending notices to creditors about your loved one’s passing
• Handling any claims from these creditors or others
• Distributing assets according to the will

This is not an exhaustive list of all of the steps required to manage your loved one’s estate during the probate process. Additionally, there are many subtasks included within each of the steps listed above. Those named as executors must take time to fully understand all of the duties they must complete concerning the estate.

Your responsibility to manage finances

Managing your loved one’s financial affairs falls under the same category as managing your loved one’s estate during probate. However, it is important to highlight this role separately because of the wide range of duties that fall under the umbrella of finances in relation to the estate.

For example, executors must:

• Set up an account for the estate, if any money is owed to it
• Pay remaining bills, such as utilities or other debts to creditors
• File taxes on your loved one’s estate
• Handle funeral costs from the estate
• Keep receipts of any transactions organized

Handling finances is a key part of an executor’s role. You must make sure you are prepared for this role to reduce your own stress, as well as protect your loved one’s legacy.

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