This is a question that a lot of clients come into our office asking. Let’s discuss how probate works and what you can do if you want to avoid it.
What Is Probate?
Probate is the legal process through which a person’s assets are distributed after he or she dies. If the person who passes away has a last will and testament that is legally valid, then the document is used as a guideline. It should outline:
- An executor – This is a person who is responsible for gathering and dispensing the estate’s assets. Responsibilities may include paying taxes that are still owed by the estate as well as any other debts and collecting debts that may be owed to the estate. Multiple executors can be named in succession in case the primary executor dies before the person whose will it is.
- Beneficiaries – One or more people can be designated to receive part or all of the estate. This includes property and other assets.
Probate court can drain much of the funds in an estate and lead to lengthy proceedings that keep beneficiaries from getting money as quickly – especially if the will is contested. For this reason, many people prefer to take steps to avoid probate. How?
Avoiding Probate in California
If you are looking to avoid probate court in the state of California, the right option for you may be a revocable living trust. Such a trust is not subject to probate in California. The estate planning attorneys at Petrov Law Firm would be happy to help you set up such an estate plan. To learn more, call our experienced California attorneys at 619-344-0360.Read More
As of January 1, 2017, Medi-Cal laws have changed in the state of California. The primary difference involves a way the state intends to recovery much of the funds its Medicaid program pays out. Keep in mind that Covered California is the ACA’s manifestation in the state, and the same recovery laws don’t apply. Medi-Cal is the state-funded Medicaid program.
How California Intends to Recover Medi-Cal Funds
When a person who has received Medi-Cal benefits passes away, the state can seek recovery of some of the funds paid out while assets are in probate. Here’s an example of how it would work.
Let’s say a widowed woman named Mary own’s a home in California. Late in life, she receives $100,000 in Medi-Cal funds to cover time she spends in a nursing facility. When she dies, her home goes into probate and is sold for $300,000. The state takes back the $100,000. Mary’s adult heirs are thus left with $200,000.
That’s just a simplified version of how the process works. Basically, if a person dies without a spouse or minor children, numerous expenses could be recouped by the state and reduce the inheritance that heirs receive.
Smart Estate Planning Avoids Medi-Cal Recovery
Medi-Cal recovery won’t affect a family trust. This is because the trust doesn’t go to probate, so the state never has the opportunity to stake a claim on funds. This makes estate planning an important factor for anyone who is benefiting from the Medi-Cal system. Using a trust instead of a will is a great way to make sure your loved ones get your entire estate, rather than paying back your Medicaid benefits posthumously during probate.
The Petrov Law Firm would be happy to help you determine how to make sure your family gets your estate, rather than having to share it with the state. Just call 619-344-0360 to start your estate planning today.Read More
If you are a resident of the state of California, there is something you need to know about present estate tax laws and the possibility of future federal and state regulation changes. Before addressing these changes, it is important to note that this article is for informational purposes and is not an editorial opinion on the part of our law firm.
Here are the facts:
- There presently is no state tax on estates in California. California does not impose any additional taxes on top of the federal estate tax.
- 2017 federal estate tax exemption is $5.49 million. That means your heirs will not pay federal taxes on inherited assets including either estate tax or gift tax.
- Federal estate tax could potentially be repealed. The current president of the United States has suggested that he wants to repeal the estate tax entirely so that the federal government does not take any taxes on inherited funds regardless of the sum.
- If the federal estate tax is repealed, California may implement a state estate tax. State Sen. Scott Wiener has already introduced a bill to introduce an estate tax for the state of California. The idea is that the state can recapture this money freed up by tax cuts offered to the wealthy by the federal government for use by the state, especially for use in education, healthcare, and public transportation and roadways according to a statement made by the senator.
How Estate Tax Changes May Affect You and Your Family
If you are leaving a large estate to family or other heirs, planning your estate properly is more vital than ever. As of now, the federal estate tax on funds exceeding $5.49 million is at 40%. If that number is eliminated by the present administration, it is not known whether California will adopt a statewide estate tax. If this occurs, it is not yet known the percent that will be taxed or how much of an estate will remain tax-free. As this situation continues to develop, working together with an estate planning attorney with your best interests at heart may become even more vital.
Petrov Law Firm would be happy to help ensure that that your heirs receive the maximum amount of your estate. Please call 619-344-0360 today to schedule a consultation.Read More
Estate planning is subject to different laws by state, so it is important to know how things such as Wills, Trusts, and Probate work in your home state. An estate planning attorney can be of great assistance in this regard, but here are 3 things to help you get started.
If You Have a Will, Your Estate Still Goes Through Probate
Some people are under the misconception that as long as they execute a Will, heirs automatically receive the inheritance. The fact is that even if you have a Will, you have to determine an executor who will take care of the probate process and help to ensure that your desires are carried out. How long the process will take depends on numerous factors.
Trustees Can Only Be Removed in Superior Court
That is where the probate division of court matters is handled. Some states will allow a person to utilize the civil court system to take action against a Trustee or to take care of other Trust matters. In California, civil suits cannot be filed for estate matters.
What Happens if You Die Without a Will or Other Estate Planning?
Intestacy law is a division of law that constitutes the state’s rules of inheritance. In California, the order of inheritance is: spouse, direct descendants (children, grandchildren, etc.), parents, siblings, grandparents. However, other factors may complicate this succession.
Taking Control of Your Estate Planning
Petrov Law Firm can help you to take control of your estate planning and navigate the many state and federal statutes that are involved. Call 619-344-0360 to get started on your plans.Read More
In California, if you have an estate worth more than $150,000 and no will, the estate has to pass through probate court and will be subject to fees. And probate fees can by high. For example, an estate worth $250,000 will get charged $8,000 in probate fees. The best way to avoid probate court and probate fees is to have a lawyer create a thorough will. And you need to keep that will up to date.
Even if you have an estate worth less than $150,000, you should have a will. Passing away without a will is a good way to create problems in your family. However, if you want to know how to calculate the value of your estate as seen by the probate court, use the following guide for identifying exclusions:
• California does not include any property you own out of state
• You do not include any property with joint tenancy.
• You do not include any community property with right of survivorship.
• You only include half the value of any other community property.
• Life insurance is not considered part of your estate.
• Cars are not included in the calculation.
• Financial accounts with multiple owners are not included in the calculation.
• Assets held in a trust are usually not included.
If you use the general guidelines above and find that your estate is close to the $150,000 mark, don’t risk probate court fees. Hire a lawyer. The money you invest up front is well worth the savings to your estate.Read More
If your estate is worth more than $150,000 (including real estate), then there is generally no avoiding probate court. When you have assets like cash, cars, boats, and a house, the executor of your estate will have to use California’s probate courts to distribute the assets to your beneficiaries. Because it could take several months to pass through the court system, your assets could sit undistributed while your family waits.
A simple real estate trust, however, can help resolve the majority of this issue. Because land values are generally more than $150,000 in California, you have to find a way to remove your house from your list of assets. Then, you can avoid probate court. Ask a lawyer to create a simple trust in which you place your house, naming your family as the beneficiary of the trust. When you pass away, the trust retains ownership of the house, and as long as you have less than $150,000 in other assets, your estate won’t have to go through probate court.
While some people fear the idea of giving up their primary asset to a trust, trusts are generally the best way to keep assets in the family. The trust become the legal owner of the property while the beneficiaries change over time. In this way, a family home can easily pass through multiple generations without the complexities of probate court and estate tax.Read More
To those who are willing to look at this objectively, please watch the link and read up on the Proposition itself. “Greedy” trial attorneys did not write this law to make more money. This proposition was written to ensure that a profession that is responsible for our health is held to the same standard as other professions. There is no “cap” on damages when it comes to legal malpractice and yet there is an antiquated cap of $250,000 of pain and suffering if a doctor commits malpractice and causes the death or severe injury to an individual. I urge everyone to look at both the Yes on 46 and No on 46 on their own to make a decision and don’t let the TV commercials be the only thing you listen to.
As far as money, the No on 46 coalition is mostly funded by insurance companies who say that “this will raise health costs” but are really just keeping all the money to themselves. Medical Malpractice Insurance rates have gone up more in CA than in states without this “cap” and yet somehow the trial attorneys are the ones to blame. The money raised by No on 46 will be astronomically higher than the Yes on 46 fund but hopefully money won’t be the deciding factor here.
If you’ve moved to California for retirement, you need a new will. While your old will (and other estate planning documents) from a previous state might be sufficient to pass through California probate court without a problem, there is no guarantee.
There are many, critical variances in probate laws. Specifically, how each state views trust laws and powers-of-attorney laws. These are especially important aspects of your will that can mean dramatic changes if they aren’t upheld by California courts. Even if California probate courts ultimately uphold the plan you created in your previous home state, there might be a lengthy review process by the courts before your assets are released to your benefactors.
More important than you assets, are you health-related documents. Not only do laws vary from state to state, but treatment options change as well. In addition, if more than three years has passed from the creation of your estate plan, you need to update the health directives to keep pace with the advancing fields of medical treatments. For example, a DNR order from ten years ago is out of date with the kinds of medical options available today.
When updating your will and health-directives because of new home state, you will find that 95% of the estate plan will remain the same. However, the remaining 5% that needs edits can make the difference between a smooth transition for your family and difficult one.Read More
The July 2014 settlement for Jessie Ventura against the author of “American Sniper” brings up common questions about these kinds of lawsuits. The terms used in defamation cases are defined as follows: slander is spoken, libel is written or printed, and defamation is the damage that slander or libel causes.
A personal injury attorney can help you determine if you have been the victim of libel or slander. In order to determine if you have a case, you will need to keep in mind a few general rules about libel and slander cases. As these cases they can be difficult to prove in court, you should prepare your case before going to see a lawyer. You will have some convincing to do.
- You have to prove a loss. Whether it’s lost wages, lost business, or a lost opportunity, you have to put a dollar amount on the damage done.
- The statement must be false. Half-truths and innuendo do not count. You must know exactly what was said, and you must have proof that the statement is false. “He’s a mean person.” isn’t sufficient for a case. “He took $15,000 from his last employer.” is a sufficiently damning statement that can be presented as a falsehood.
- Someone in the public must have seen or heard the statement. An e-mail from one employee to another inside of a private company may not be considered public.
In today’s world of Facebook and Twitter, slander and libel have become more common. Many people have been defamed on these kinds of social media outlets. But always keep in mind — proving a loss in slander and libel cases can be very difficult to show.Read More
If you were riding your bike, and you were hit by a passing car, or forced off the road causing injury, you have the right to sue the driver. In California, bike riders have full use of most lanes of traffic.
California Vehicle Code, section 21202, is fairly short and clear. As a bike rider, you have as much right to use the full lane of the road as any car. There are some exceptions in the law that allow for a car and a bike to share the lane, but the exceptions are rare.
As a bike rider, you are not required to go the same speed as a car. You can take full use of the lane. However, because you are likely to be going slower than the speed of traffic, you should not make it difficult for a car to pass you when it is legally possible.
The intent of the law is to create bike friendly environments in urban areas. While the drivers in some cities, like San Francisco, have more experience in sharing the road, all California cities should start learning how to create more energy efficient urban spaces.
Bike riders in Southern California today bear the brunt of teaching drivers how to be more patient and understanding of bicycles as vehicles. Unfortunately, part of that process means legal action against drivers who still refuse to share the road.Read More