Death is not an easy subject to think about – much less funerals. It is generally because these topics are so difficult to think about that many people put off other aspects of estate planning for so long.

Funeral planning might not be your or your loved one’s priority, but it is something you should understand, and even make plans for.

What are the trends in funeral plans?

Cremation is the most common choice for funeral plans in the country. CNN reports that cremation has been more common than burials since 2015. There are many reasons for this, including:

• The cost of burial and funerals
• The location of family members
• Personal preferences

You might wonder: why is it important to understand these trends?

To some, cremation was a controversial option, especially when it came to religious rules. Now, it is more common than burials. It is important to understand these trends because they influence our culture – which influences us, even if we do not know it.

Preserving values and legacies in death can be a big deal

Many people want to ensure their funeral plans adhere to the values they held close in life as well. This is one reason why green burials are also becoming more common in California.

Funeral services are also called “celebrations of life.” By planning your funeral in advance, you can ensure that the celebration accurately reflects your life’s values.

Making all of your wishes known is what is most important

There are many options for individuals to consider when it comes to planning their funerals. The myriad of options can be overwhelming for your family to deal with on top of grief – especially if they do not know your wishes.

Your wishes and values are the most important factor here. As we discussed in previous blog posts, establishing your wishes can protect your legacy while reducing the stress on your family in difficult times.

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One of the most common worries that families have about the probate and estate administration process is time. Whether or not you are the executor of your loved one’s will, you may wonder and stress about how long it will take.

It is true that probate can take time. The average probate can take about one year to complete. Even so, it is an important process. Worrying about time is understandable, but it is often more helpful to understand what variables can delay probate from being completed.

Four significant factors that can delay probate

First, it is important to note that every case – just like every family – is different. Not all of these delaying factors might impact your case, but these are some of the most common ones that families encounter:

• The estate plan: Issues with a loved one’s plan can frequently delay probate. For example, if your loved one has more than one will, it can take time for the probate court to determine which one is valid.
• The process itself: Certain aspects of California’s probate process do contribute to how long the process takes. There are certain steps that the executor or personal representative must complete, including filing and publishing notices as well as the 120-day waiting period after the estate is opened for creditor claims.
• Locations: This does not necessarily refer to the location of the probate court. Probate can take longer if your loved one owned several real estate properties in different states, (which, in turn, might require separate probate filings). Additionally, another delaying factor can be the location of all the beneficiaries. If they live across the country, or even across California, the process can take longer.
• Assets: Did your loved one hold intellectual property rights? Or did they have expensive collectibles? Valuing these complex assets properly can take time, but it is critical to do it right.

Several other factors can prolong the probate process. However, recent events outside of the court have impacted the process as well.

What about outside circumstances?

It is uncommon for circumstances outside of your family, the estate plan or the court to influence how long probate might take. However, this last year was nothing but uncommon.

Concerns over probate delays have only increased due to the COVID-19 pandemic. With shutdowns and closures of courts across the state, delays have only increased in the last year. Restrictions are slowly easing, but it will likely take California probate courts time to catch up.

It is natural that families want to resolve probate and move forward as quickly as possible. And there is no doubt that it is stressful to navigate probate while grieving a loved one, but understanding the factors that can delay probate can help families feel more prepared to handle this process.

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Selling your loved one’s property during probate is very different than any traditional real estate sale. For one, the California probate court may be involved in the process and may ultimately have to approve the sale. There are several other steps you may have to take as well, depending on the authority you have.

Whether your loved one’s will instructs you to sell the house, or there is no will and a sale is necessary to pay the remaining debts, one of the most common worries individuals have in these cases involves the condition of the house.

Do I make repairs to the house or sell it as-is?

Your loved one’s house might be older construction and have an outdated design. It might even be what many people call a fixer-upper.

The housing market can be fickle, and dealing with the sale of an old house on top of probate proceedings can be tough. After all, most sellers try to fix up their houses before listing them to improve curb appeal and get a better resale value.

Rehabilitation is an option for some homes. However, repairs can be a challenge in a probate sale. For example:

• Older houses might require considerable repairs and rehabilitation
• Rehabilitating a property can take a lot of time – and money – that you might not have
• Repairs might inadvertently cover up defects or foundational issues that could be a risk

This is why most probate properties in California are sold “as-is.” That way, you can list the probate property without making repairs, and generally, you are not responsible for any problems buyers may find down the line since they purchased the property as-is. This option is also more common because it is unlikely that you lived in your loved one’s home, and therefore do not have the same knowledge of potential problems it may have.

Of course, you must clear the house of any personal effects and other assets. You can also make small repairs and clean the house up for the listing. But full rehabilitation of the property is not always necessary, even if it is a fixer-upper.

So, what should I do?

Generally, whether you sell your loved one’s house as-is or rehabilitate it depends on your circumstances and the condition of your loved one’s home. It is often beneficial to consult an experienced probate and estate administration attorney who can help:

• Analyze the property and determine which option is best for you
• File the proper paperwork with the court, send notices to beneficiaries
• Make sure the sale meets all of the conditions outlined in the Probate Code
• Obtain an appraisal of the property

Managing all of the details of probate as well as selling a house can be overwhelming. However, it is possible with knowledgeable guidance.

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It is common to hear that it is never too early to plan for the future. Yet, many people – especially young adults – put off creating a will because they believe they have time to address these matters later in their lives.

However, what about the parents of these young adults? Most California families do not want to think about losing a loved one, but no one can predict the future. And the COVID-19 pandemic has left many families and young adults in situations they never expected.

Young adults facing sudden loss and overwhelming stress

Dealing with the loss of a parent is not easy at any age, whether it was the result of a terminal illness or a terrible accident. The grief can feel especially overpowering for young adults, who imagined they had much more time with their parents.

On top of that, losing a parent can also leave young adults facing considerable stress as they try to manage their parents’ estates and finances, as well as the probate process. The COVID-19 pandemic only emphasized this issue. The Wall Street Journal recently reported on several cases like this, with young adults struggling to do anything from locating their father-in-law’s wallet to obtaining a forbearance on their father’s mortgage.

Do your parents still need a will?

A significant percentage of adults across the country still do not have a will, or any other estate planning documents for that matter. This can lead to even more confusion for their young adult children dealing with probate.

Without a parent’s estate plan to guide them, young adults may have no starting point to:

• Understand, manage or even locate assets and debts
• Adhere to a parent’s wishes for their medical care or funeral
• Access mail, financial accounts and even property
• Begin probate

Taking any of these steps is stressful – and devastating – for anyone, but it can be especially when children are unprepared. No one wants to deal with such anxiety and uncertainty. And no parent wants to leave their child unequipped to handle their affairs or protect their wishes.

Estate planning is not always an easy topic to discuss, but it is worth it for children to discuss it with their parents, and ensure they know what to do to protect their legacy.

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Many people see the age of 18 as an important milestone. After all, that is when you become an adult in the eyes of the law.

However, it is easy to overlook the implications of this moment. Parents and children alike might celebrate this occasion, but the moment your child turns 18, you no longer have the authority to make decisions for them. This might seem like a part of life, but what happens if your child faces an emergency?

Accidents happen. But can laws prevent parents from helping?

The last thing any parent wants is to receive a frantic phone call from their college-age child. They worry the worst has happened. For example, teens and young adults face a high risk of being involved in a car accident. Parents could face several challenges in trying to help their child in this situation:

• Distance, as many children move away to attend college
• Limited points of contact, especially if their child is injured

However, the other challenge is a legal matter. California parents might come up against obstacles when they call the hospital for information about their child. This is because HIPAA laws prevent medical staff from discussing a legal adult’s condition with anyone – including their parents.

That is why families should consider making a plan

This concern has existed for years. And it will continue as children become legal adults, move on to attend college or engage in other post-high school adventures. As Forbes reported in 2014, powers of attorney are critical to protect children as they move forward into early adulthood.

No parent – or adult child, for that matter – wants to feel helpless in these situations. Thankfully, it is possible to avoid that stress. If you have high school- and college-age children, you should consider having a conversation with him or her — that they should consider establishing:

• An advance health care directive: This can help make sure your child gets the care they need. Your children can also assign you as an agent who can make medical decisions on their behalf. This also often ensures you can discuss their conditions and care with their medical provider.
• A durable power of attorney: You should not forget financial issues either. Part of entering the adult world is managing finances. In the event your child cannot make financial decisions, a power of attorney can allow you to step in and make these decisions for them.

Parents cannot establish these things for an adult child. But parents can explain what their children need to do. The adult child can then meet with an attorney without parents to get it done.

These conversations are never easy, no matter your age. However, they are important to protect the ones you love most.

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Taxes are usually the last thing you want to think about. They are often complex and stressful.

Filing your own taxes is especially the last thing on your mind when you and your family are facing the process of probate. But what about your loved one’s taxes – are they still necessary after death? And do you have to file them, if you are the executor or personal representative in a probate matter?

Yes, you must file taxes in probate

One of the most critical steps in the probate process is taking care of a loved one’s debts and remaining financial responsibilities. The executor or personal representative must make sure outstanding bills are paid, such as any medical bills, credit card debts and utilities.

However, this step also includes filing taxes on behalf of your loved one.

It is critical to note that – like other debts in your loved one’s name – you and your family members will likely not be directly responsible for paying the taxes. Anything owed will come from the estate. This can differ if surviving spouses file jointly, but any payments are usually from the estate.

So, what do you have to do?

In general, there are a few steps you must take to file the final tax returns. For example, you must:

• Obtain the decedent’s federal ID number
• Notify the IRS that you are the executor or personal representative and acting on your loved one’s behalf
• Gather the proper paperwork, including obtaining a certificated copy of a death certificate
• File any and all necessary tax returns (including outstanding past due returns!)

You should also check whether there are any overdue tax returns from previous years. You must pay these as well.

Which returns are necessary to file?

The tax returns you will have to file will depend on your loved one’s individual circumstances. But in California, the returns you may need to file include:

• State income tax returns
• Fiduciary income tax returns
• Real estate or property taxes
• Business or employment taxes
• The federal estate tax, if necessary

The State of California’s Franchise Tax Board provides a helpful guide for families managing taxes during the probate process. It might also be beneficial to consult an experienced probate attorney to make sure everything in the final tax return is in order.

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In a previous blog post, we discussed how beneficial it is for individuals to have a health historian. This is not an official role, which leads many people to wonder: how can a health historian really help me?

1. Someone can represent you if you cannot speak for yourself

For the need to arise for a health historian to provide medical information on your behalf, it’s not something you would want to think about, but it is a real possibility.

In an emergency, you might not be able to provide your health history to the medical professionals trying to give you the best possible care. You might be confused, incapacitated and or have difficulties expressing yourself.

But a health historian, who has a thorough understanding of your medical history, can help speak for you to make sure you get the proper care you need. To that end, it is most helpful to have a lawyer prepare a detailed power of attorney for healthcare to give this person the legal power to make decisions on your behalf.

The combination of a health historian with power of attorney ensures you have holistic representation during difficult circumstances. After all, they can then:

• Provide a current list of medications you are taking to health care professionals
• Provide a list of doctors you are currently seeing and for what purposes
• Discuss your health history and the current situation with medical providers
• Understand the day-to-day effects of your health and medical condition
• Make informed decisions about your care

Making sure someone aside from you shares the knowledge of your health history is an important precaution you can take for your own medical care.

2. You can benefit from another perspective

It is always helpful to look at things from a different perspective – even when it comes to your health.

If someone else has comprehensive knowledge of your health history, they can support you in:

• Your medical care: They can accompany you on appointments and provide your medical history and current medications, as well as insightful opinions about your treatment options and care.
• Planning for the future: Your health historian can also help you consider estate planning and future medical decisions. This can be an overwhelming topic to contemplate alone but working with your health historian to clarify your wishes and make difficult choices will make the process easier.

3. It can reduce your stress

Choosing a trusted loved one to be a health historian can also take some weight off of your shoulders. Dealing with health and medical matters is never easy, but you don’t have to handle it alone.

And knowing someone understands you and your condition, and that they can make these important decisions that adhere to your wishes, can give you peace of mind.

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It is common for elderly loved ones to leave real estate properties to their children when they pass away. Whether it is the cherished family home or a rental property up north, your parent might leave this property to be shared – or divided – equally between you and your siblings.

Dealing with inherited real estate properties can often be one of the most complex aspects of the probate and estate administration process. Children who inherit such property frequently sell it and divide the profits equally, as that is usually the most straightforward way to handle it.

However, even if it is one of the easiest strategies, selling property in probate requires a few critical steps that families and executors must understand.

Three steps to selling property in probate

As the executor, you must:

1. Get a proper, official appraisal of the real property to determine its value
2. Provide written notice to the interested parties – the beneficiaries – about the appraisal and the sale
3. Obtain consent from these parties regarding the sale

Only then can you move forward with the process of selling your loved one’s real estate property.

Don’t I need court approval to sell the property?

This is an important question to consider. Though, the answer depends on your authority as executor.

Under the California Independent Administration of Estates Act (IAEA), executors may have different levels of authority, and therefore power over the property sale. And these levels of authority determine whether or not executors must obtain court approval.

So, according to the law:

• If you have full authority, you can make most decisions regarding real property without court approval. This includes sales, exchanges or matters involving the mortgage.
• If you have limited authority, you cannot sell the property or make decisions regarding it without court approval.

Regardless of the type of authority you have, you must still take the three steps listed above to sell property, and the court will still become involved if any issues or disputes should arise.

The authority you have generally depends on what your loved one included in their will. For example, some individuals might explicitly indicate that their executor should only have limited authority. Otherwise, it depends on the personal representative’s petition and the probate court’s decisions.

It is critical to understand the scope of authority you have in this process, so you and your family can navigate the probate process smoothly and effectively.

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According to the Pew Research Center, the rates of cohabitation between unmarried couples of all ages has increased. There are many reasons for this increase. Some couples choose to remain unmarried while many live together before getting married nowadays.

Regardless of the reason, this increase does come with a few setbacks of which unmarried couples must be aware, especially as they move forward into an unknown future together.

Financial issues can be convoluted

It is no secret that finances are a major aspect of a long-term relationship. Whether or not couples are married, they must determine how they will approach budgeting and paying bills if they live together.

Many California couples are aware that their financial matters could become incredibly complex if their partner passed away without an estate plan, but unexpected medical issues can also pose a great risk.

Medical matters are complicated too

Hospital visitation rights have been a point of contention for many years. Hospital staff often refused same-sex partners from seeing each other simply because anyone not related to a patient by blood or marriage had limited visitation rights. Thankfully, there are new protections in place that allow partners to visit each other. But visitation is not the only issue.

Unmarried couples frequently face challenges when it comes to making medical decisions on behalf of their significant other too – particularly if they do not have an estate plan in place.

It does not matter if couples plan to marry in the future or not. But it is critical to consider:

1. An Advance Healthcare Directive giving your partner medical powers of attorney
2. Durable Power of Attorney for your finances

We have discussed the importance of these tools in previous blog posts, but it bears repeating. Having these documents in place can help to ensure that your partner has the right and authority to make financial decisions on your behalf and get you the medical care you need – regardless of your marital status.

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For most people, their home is the most expensive asset in their name. Therefore, it is also one of the most expensive assets that you and your family must deal with during probate.

If your loved ones do not leave explicit instructions or designate their house to a specific person, it might be necessary to sell the home to repay debts on the estate or divide the assets according to the will. However, selling a house during probate can often be complex.

Here are a few essential things you should know.

What are the rules for selling a house in probate?

The California Probate Code establishes extensive rules for probate home sales, and it is not possible to cover all the rules and details of this process in one blog post. However, we can provide a brief overview.

The most important detail that you, as the personal representative, must understand is that court approval is usually necessary to sell the home. The only exception to this is if you are granted full authority under the Independent Administration of Estates Act (IAEA) as the personal representative by the Court. Otherwise, you must:

• Get court approval to move forward with the sale;
• Publish a Notice of Sale in a newspaper of general circulation;
• Sufficiently market the property for sale to obtain the highest possible offer;
• Obtain an appraisal by a court-appointed Probate Referee of the property to ensure you mark a proper listing price;
• Sell the property for at least 90% of the value appraised by a Probate Referee; and
• Have the sale confirmed and approved by the Court at hearing subject to overbids.

Once the sale is completed, you must ensure that the proceeds are combined with your loved one’s estate. Then, you can move forward with paying off debts and distributing leftover assets among beneficiaries.

However, some beneficiaries might also pose a challenge to selling the house.

Objections from beneficiaries could postpone the sale

Even if you have full authority to administer the estate, you are still required to notify all beneficiaries of your intent to sell the home.

Other children or relatives of your lost loved one might protest to the sale because they wish to keep the home for sentimental value or because they are occupying the property. Even if you have found a buyer and reached an agreement with them, an objection from a beneficiary could lead to a court hearing and auction where many parties can bid for the house, including:

• Prospective buyers or investors;
• Beneficiaries; or
• Any other interested parties.

Dealing with real property in probate can be a stressful process for you, your family and any other heirs or beneficiaries. That is why it is often beneficial to consult an experienced attorney, so you can protect your rights and the wishes of your loved ones.

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