San Diego Estate Planning Lawyer Blog

Aa you have learned from the recent series of blogs on probate, if you can avoid a probate after your death, your heirs will have an easier time settling your estate.

The best way to avoid probate is to have a revocable living trust into which you transfer all of your assets to yourself as the trustee during your lifetime. Upon your death, the successor trustee you have chosen will have immediate authority to administer your trust without a probate. It is critical however that you in fact transfer your assets into your trust by deed, changing title to accounts, etc. Other advantages of a trust are privacy and that if properly drafted, the trust will also have provisions for someone to manage your assets if you become unable to do that for yourself.

Other ways to hold title to avoid probate are:

1. Property held in joint tenancy with a right of "survivorship". An example might be a home you own with your spouse with a “right of survivorship.” Sometimes people own their cars in joint tenancy with other people or a bank account in joint tenancy. When a joint tenant dies, the other joint tenant(s) inherit the property without the probate process. Although assets held in joint tenancy avoid probate, holding title in joint tenancy can cause other problems such as the potential loss of a full step-up in basis which can result in capital gains. Another problem which can result when you own something in joint tenancy is that creditors of the other joint tenant may be able to enforce a judgment against the property.

2. Payable on Death Accounts (or POD accounts). This is a type of account where you choose a beneficiary who will receive the account upon your death. These accounts pass to the beneficiary without probate.

3. IRAs and Retirement Accounts. Benefits payable to beneficiaries under these accounts automatically pass to the named beneficiaries and avoid probate.

4. Life Insurance Proceeds. Just as with pension and retirement plans, life insurance proceeds are paid to the named beneficiaries and avoid probate.

For questions about probate, living trusts, transfers to trusts, or any other estate planning area, contact us at Pinkerton, Doppelt, & Associates, LLP.

Frequently Asked Questions about San Diego Probate

1. How long will my probate matter take? As a general rule, most probates in San Diego are finished in a year to 18 months. However there can be many issues that may cause the probate to last longer. Common examples are litigation issues that develop such as an objection to the will, unusual property that has to be appraised or liquidated, difficulty finding heirs or beneficiaries, and larger estates with tax issues.

2. If I am an administrator or an executor, will I have to post a bond? A bond is for the purpose of protecting the decedent's estate in case the personal representative mismanages the estate. Depending on the size of the estate, bond premiums can be $2000 or more per year.If the will waives bond or you can get all the beneficiaries to waive bond, you probably won't have to post a bond, however the Court can always order the personal representative to be bonded if the Court believes it is warranted. Bonds are usually required if the administrator or executor live out of state. To obtain a bond, you have to provide information to the bond company about your employment, criminal convictions, bankruptcies, and civil judgments against you. Some people are not bondable if they have issues in these areas.

3. What should I do if I am a creditor of a probate estate? If someone has died owing you money and there is a probate opened, you can file a creditor's claim against the estate. You may receive a Notice of Administration if you are a known creditor in which case you have 60 days to file a claim. If you are not notifed of the probate, you have 4 months after the letters testamentary (probate with a will) or 4 months after the letters of administration (probate without a will) within which to file a claim.

4. What if my spouse died and all of his or her property is community property? If all of a decedent's property is held as community property with the surviving spouse, a petition can be used to pass the assets to the surviving spouse. This is a simple petition filed in the probate court but without all the formalities of regular probate and it can be heard in a relatively short time after it is filed.

These are general answers to general questions but remember each probate situation has its own facts and issues which may change the general rules. If you have specific questions about your probate matter, we offer a complimentay 30 minute consultation. Contact us at Pinkerton, Doppelt, & Associates, LLP for probate and other estate planning issues.

The fees for a probate attorney to handle your probate matter are set forth in the Californa Probate Code. Section 10810 escribes the maximum fees an attorney can charge. These are as follows:

4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
If the estate is worth more than $25 million, the Court will determine the fee.

Who is entitled to these fees? The statute allows compensation for both the attorney handling the probate and the executor or administrator (if you have read the previous blogs, you know the difference). So for example, if the estate is valued at $500,000, the statutory fees would be $13,000 for the attorney and $13,000 for the executor/administrator. With a $1 million estate, the fees would be $23,000 each, or $46,000 total. Fees can also be increased by the court if the probate is complicated by litigation or tax issues.

You may be asking how the fee is determined when there is an asset which is mortgaged. For example, you may have a home appraised at $400,000 but it has a $300,000 mortgage. The house is still considered an asset worth $400,000 for purposes of determining attorneys fees.

In addition to the statutory fees for attorneys and executors or administrators, there will aso be costs to file the probate, publication costs, and appraisal fees. For questions about probate or to assist you with the probate process, contact us at Pinkerton, Doppelt, & Associates LLP.

If a person dies and they have a will, there will have to be a probate proceeding to transfer the assets. As you know from reading the previous blog, a probate is simply the court supervised proceeding to determine who the heirs or beneficiaries are and transfer the assets to them.

If person dies and leaves no will ( ie. they died intestate), there will still have to be a probate. The Court will distribute your estate to your heirs at law to be distinguished from the situation where a will names the beneficiaries you want to inherit who may or may not be your heirs. As an example, if you want to leave money to a favorite charity, you have to name that charity in a will or a trust. Without either, your estate will be an intestate estate and be distributed to your heirs, not the charity you had in mind.

The distinction between a will and no will is simply that if no will is found, the estate will be distibuted according to the laws of intestate succession. In California with a decedent who is single, the beneficiaries will be the children; if no children, then to parents; if no parents, then to brothers and sisters or their children. If none of those individuals exist, then the estate will go to grandparents, if they are still alive. If none of those relatives exist, then the estate will go to the State of California.

If the decedent left a spouse, the community property will be distributed to the spouse and if there are no children, the separate property will also pass to the spouse. If there are children, the children will get a portion of the separate property.

The rest of the intestate probate administration will progress just as it does with a will. There will be a petition filed with the probate court to start the process and the court will appoint someone as the administrator of the estate. The assets will be inventoried and appraised, creditors notified, taxes paid if necessary, and assets distributed to the decedent's heirs at law.

At Pinkerton, Doppelt, & Associates, LLP we handle both testate and intestate probate. Initial consultations about your probate matter are at no charge. Probate administration is based on the statutory fee schedule set forth in the California probate code, which we will talk about in the next blog.

This blog entry is the first in a series of blogs about probate, what is is, who is involved, how long does it take, and what does it cost.

Estate planning lawyers use a lot of terms in probate that most laymen do not know the meaning of unless they have been a participant in the probate process. The following is a short glossary of terms used in probate so that you understand who the players are and what the definitions are of commonly used terms.

Administrator - the individual appointed by the probate court to administer the decedent’s estate when there is no will

Beneficiary - the person or persons named in the decedent’s will who are entitled to the distribution of the decedent’s assets. Usually the beneficiaries are the decedent’s heirs but there is no requirement that they be such. If the probate is one where the decedent did not have a will, California laws on intestate succession will determine the beneficiaries who are entitled to a distribution of the estate.

Bequest - a gift under a will

Bond - an insurance policy used to ensure that a legal representative such as an administrator or executor will do his or her job and not misuse or misappropriate funds he or she is in control of

Codicil - an amendment or supplement to a will that modifies, alters, or revokes the provisions of a prior will

Decedent - the individual who died

Estate - All the property that the decedent owned at the time of death

Executor - the individual named in the decedent’s will to administer the decedent’s estate

Intestate - refers to the fact that the decedent died without a will so that his or her heirs will receive the assets of the estate according to the laws of intestate succession

Look for later blogs about other aspects of probate. If we can assist you by answering your questions about probate or handling your probate matter, feel free to contact us.

The San Diego Probate Courts hear many guardianship cases each week, in the North County Branch or the downtown branch.

A probate guardianship is the appointment by the Court of an adult or adults who will have legal guardianship over a minor child. There are two types of guardianships: (1) guardianship of the person and (2) guardianship of the estate. A child’s guardian will be legally accountable for taking care of the child’s education, shelter, food, clothing, and health care. This is a huge responsibility which lasts until the child is 18. A guardian of a minor’s estate is responsible for handling the assets of the minor.

The Michael Jackson case has caused many people to ask why the Los Angeles Probate Court is involved in determining who should be the guardians of his three children. After all Jackson did nominate his mother Katherine Jackson as the guardian of his children and that is the point of having an estate plan that incorporates a nomination of guardian(s) for minor children. However some people may not realize that the individual you name in your will or trust is just a nomination; it is not etched in concrete. The nomination sets worth your wishes but if other individuals want to file for guardianship, it will be a probate judge who will determine whether your wishes are in the best interest of the children. Hence the Court in the Jackson matter will have to weigh the interests of the children together with the wishes of Michael Jackson and the qualifications of both Katherine Jackson and the biological mom, Debbie Rowe.

Anyone can file for guardianship even if the decedent named a guardian for his or her minor children. Usually the Court will give preference to relatives such as the grandparents, uncles, aunts, or other relatives but family friends and anyone over the age of 18 can seek guardianship. The experienced attorneys at Pinkerton, Doppelt, & Associates, LLP can assist you with your guardianship matter. Contact us for a complimentary consultation.

Many seniors have serious concerns about going into a nursing home. They have questions such as whether they can be forced to go into a nursing home, how to pay for nursing home care, and how to choose a nursing home facility that will provide good care. They also wonder if they can qualify for Medi-Cal to pay for such costs.

No one can be forced into a nursing home. If you do not believe you need nursing home care, the only way you can be forced into such a situation is through a court ordered conservatorship. An interested party can file a petition to have a conservator appointed if you are unable to take care of yourself. You have the right to appear at the hearing, present evidence that you do not need a conservator, and have a lawyer represent you.

If you do need nursing home care, there are many reputable ones. Choosing the right nursing home can be an important decision for you and your family. Nursing homes are strictly regulated by the state and federal government. There are regular inspections and procedures for complaints. In San Diego, there are many nursing homes. You can get information about how to choose one from AARP and California Advocates for Nursing Home Reform. Personal referrals from friends, senior centers, or churches can help narrow your search. Make sure you personally visit the ones you are considering and if Medi-Cal may be paying for such care at some point, choose a place that accepts Medi-Cal so that the individual will not have to be moved once Med-Cal is paying for the care.

The cost of a nursing home stay can be covered by Medicare but only for skilled nursing care ordered by a doctor. Once your care becomes routine custodial care, Medicare will not cover the expenses. Medi-Cal qualification may be an option if you meet the income and assets limitations.

Once someone is moved into the nursing home, they cannot be forced to move unless the individual endangers the safety of other residents, their needs cannot be met at the facility, or there are problems with payment of services.

If you need assistance to insure that you or a loved one have the appropriate estate planning documents such as a will or a trust, a power of attorney and a health care directive prior to entering a nursing home, contact us at Pinkerton, Doppelt, & LLP. We can also help with Medi-Cal planning or Medi-Cal qualification. We can help you determine if you have some exempt assets, whether annuities or reverse mortgages might help you remain in your home, and explain the options you have for long term care.

According to a survey by Martindale-Hubbell at lawyers.com, more than half of the people in America do not have a will or a trust. If you do not prepare a will before you die, your estate will have to go through probate. In fact, if you do prepare a will rather than a trust, your estate will have to go through probate.

Probate in San Diego is the legal process of administering a decedent’s estate so that legal title to property can be transferred from the decedent’s estate to his or her beneficiaries. If the decedent has died in San Diego, the estate will be probated in the San Diego courts. In San Diego County, a petition for probate can be filed in the downtown San Diego Probate Court or the North County Probate Court located in Vista.

For most people, becoming an executor of an estate with a will, or becoming an administrator of an estate without a will, is something that requires the assistance of a lawyer. Sometimes people think they can handle a probate without legal counsel, get involved in the process, and then decide that they are in over their head and need legal assistance. Many clients find the process time consuming and confusing. There are many nuances to filing the correct documents with the Probate Court in a timely fashion. If property is owned out of California such as a timeshare, second home, etc., ancillary probate proceedings have to be set up in those states, which complicates the settling of the estate. Sometimes court appearances have to be made which makes some lay people uncomfortable.

The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP help many people through the probate process. It doesn’t matter which lawyer you choose to assist you, the statutory fees are the same, however, what we offer is years of expertise in helping clients through the process; no charge for copies, postage, parking, or mileage; convenient location off the Interstate 15, and helpful friendly support staff that will always return your calls, keep you informed of the status of your case, and answer your questions. Give us a call to set up your complimentary consultation about your probate matter. We also handle will contests, preparation of wills & trusts, and litigation.