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
You may be looking for a way to leave your assets to heirs without the added time and expenses involved in probate. If so, a living trust could be exactly what you have been searching for. But does this mean that you are turning over control of your assets to a trustee?
If you set up a revocable living trust, then you are the trustee while you are still living. This gives you complete control over the trust. You can add assets or remove them from the trust at any time. It is a great way to leave property and other assets to your heirs and have them avoid probate without giving up control during your life.
However, when you pass away, your revocable living trust becomes irrevocable. At this point, a successor trustee will take over. He or she will then carry out your wishes for the trust in accord with any instructions that you have left behind. This makes it important to determine in advance what you want a successor trustee to do.
Providing Instructions for Your Successor Trustee
If you are a California resident in the San Diego area, Petrov Law Firm is your source for the best estate planning lawyers to help you leave instructions for your successor trustee that ensure your wishes are carried out when you are no longer here to do so yourself.
To learn more about how to set up a revocable living trust with a successor trustee in order to avoid having your estate go into probate, contact Petrov Law Firm at 619-344-0360. Our attorneys will be happy to help you get your affairs in order, regardless of how large or small your estate may be.Read More
This is a commonly asked question when it comes to estate planning. The short answer, if you have executed a will, is yes. In the state of California, the person assigned to handle your affairs when you die is your executor.
What Is the Job of the Executor?
If you die with only a will, then your estate will go through probate. At that time, your executor will be in charge of accounting for all of your assets and distributing them to your heirs as declared in the will. The will gets filed with the probate court. The executor is also in charge of paying off debts or creditors, so these individuals need to be informed of the death. The executor is also in charge of paying the taxes due on the estate and will appear in court on behalf of the estate as necessary.
Avoiding Probate with a Living Trust
A living trust or revocable trust is a great way to avoid probate and the need for an executor. This is a common practice in California, but it can still be confusing to know which option is best for you and how to execute it properly. That’s what the Petrov Law Firm is here for.
Our estate planning attorneys know how to maximize the benefits for your heirs when you are no longer here to take care of them yourself. Call 619-344-0360 to set up a consultation with one of our estate planners today.Read More
Even when you assets are accounted for in a will, the will has to pass through probate before the beneficiaries take ownership. Generally, anything in the will remains private and any assets not named in the will become part of public record once the probate judge makes a determination of beneficiary.
If you want your beneficiaries to immediately take possession of your assets upon your death, there are five primary ways to avoid probate. However, even if you use one of the main methods of avoiding probate court, you should have an estate attorney review your entire estate. As with any legal process, there are variations by state and caveats that could unhinge your intentions.
Trusts: Trusts are fantastic tools for creating multi-generational asset management. But trusts have to be properly created by a good estate attorney.
Jointly Held Property: There are several ways to name property owners on a deed, and if you do it the right way, the property won’t go through probate when the first owner passes. But your lawyer might encourage you to create a trust and avoid this question altogether.
Insurance Death Benefits: Insurance benefits never really belonged to you anyway. The benefit immediately goes to the beneficiary and is often not taxable.
Pay-On-Death Account: This tool is especially helpful for smaller amounts of money held in a checking account. This money is a great way to continue paying debts and making funeral arrangements.
Retirement Accounts with Beneficiary: There is a generation of people who have always had 401(k) retirement plans. So unlike the older generation that benefited from pension accounts, the younger workers will have more money to pass along to heirs.
And technically, almost anything you give away before you die won’t go through probate. But again, this can be a legal nightmare thanks to limitations on gifts. Consult with your estate planner on how to give away property prior to death.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.
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 die without a will, it’s very possible that your family will have to wait for a probate court to review your assets and distribute them according to state laws. While a will is a good way to avoid probate courts, you can consult with your estate planning attorney to review a few of the other options for you.
Assets such as a 401k, life insurance policy, and an annuity have beneficiary designations. Upon your death, these kinds of accounts generally do not have to pass through probate. The beneficiaries will have to do little more than to prove their identity and show a death certificate to take possession of the asset. Some states allow this same kind of benefit with bank accounts and investment accounts. These can be called a Transfer on Death (TOD) or Payable on Death (POD) account. A life estate deed is an option for avoiding probate for real estate.
Review the legal implications of how you hold real estate. There are several options for how to hold real estate. For example, if your deed says “Tenants in Common” your real estate will have to pass through probate before it can be distributed. You can consult with an estate planner to ensure your assets are properly designated.
Lastly, you can avoid probate by giving all of your assets away before you die. Luckily, you can put a lot of your assets into a trust (there are several kinds) that will benefit whomever you choose during your life and afterward. An estate attorney can help you create the proper kind of trust for you and your family.Read More