San Diego Estate Planning Lawyer Blog

Given the state of the economy, many people are giving loans to their children. While it is very generous of parents to loan money to their children, it can create several problems down the road. Most parents give money to their children but do not expect to ever be paid back. Even if the parents expect to be paid back many children do not make any payments on the loan or they consider it a gift that does not need to be repaid. This can can cause tension and resentment between those children who did not receive a gift or loan from their parents and those who did.

It also causes problems after the parents have passed away. Typically, the child who did not receive any money will expect their siblings share of the estate to be reduced by the amount of the debt. The child who did receive the money usually will say that the money was a gift or that it was paid back a long time ago. If disputes arise, it would be up to the probate court to resolve them.

If you do want to loan money to your children it is important to have the amount of the loan and the interest in writing. If it is not in writing, it is important to keep evidence of the amount that was loaned and whether any payments were received over time. The biggest problem occurs when the child stops making payments on the loan. The law has a statute of limitations, meaning that a claim for money must be brought within a specific time period. The statute of limitations on loans is six years after the due date of the loan. Therefore, if a child does not pay on a loan, the parents have to enforce the loan within six years of the last payment due date. Most parent will not sue their children for not paying on the loans while they are still living and thus the claim to the money by the parent's estate will be barred by the statute of limitations.

The existence of the loan usually does not come up as an issue until after the parents have passed away. The administrator or executor of an estate or trustee of a trust, is charged with collecting all the assets belonging to the estate. A loan is an asset of the estate; however, the administrator can have difficulty collecting on the loan if the statute of limitations has expired.

One solution to this problem is for the parents to update their estate plan whenever they loan money to a child or beneficiary of their estate. The parents would state in their will or trust that the child’s share of the estate is reduced by the amount of money currently owed to the parents. In Cook v. Cook, 177 Cal. App 4th 1436 (2009), the court held that the testamentary intent overcame the normal statute of limitations that would apply to loans. As always, it is important to ensure your estate plan is updated and to consult with an attorney about your estate plan.

TMZ has an article which discusses the probate issues with Dennis Hopper. Probate is the process by which a court administers an estate. Dennis Hopper recently died. He was married and filed for a divorce but his divorce was not final when he died. He also had a prenuptial which specified certain terms and conditions.

When Dennis Hopper died, the divorce action terminates as a matter of law and the case goes into probate court where the litigation will continue. The division of the estate's assets and debts will be decided by a probate Judge and not in a family law Judge. The factual pattern of a person passing away while going through a divorce is not as uncommon as one would imagine. It is very important, when going through a divorce, to consider whether or not modification to your estate plan is recommended. In a divorce case, since there are automatic temporary restraining orders when the petition and summons is filed and served, this needs to be considered in any change in the estate plan.

Continue reading "Dennis Hopper: Probate" »

The San Diego Superior Court has a probate court in the North County Branch in Vista. Department N-23 hears probate matters and the only other court in San Diego County is at the Madge Bradley Court House in downtown San Diego. Each probate court has its own policies and procedures and this will focus on the department in Vista.

For ex parte applications, there must be compliance with with requirement that there is a factual affirmative showing in the form of a declaration with competent testimony of personal knowledge that there is immediate danger, irreparable harm or any other statutory basis or local rule which permits ex parte relief. Ex parte hearings are heard on Mondays at 1:30pm and Thursdays at 2:00pm and notice needs to be given by 10:00am the day prior to the ex parte except under exceptional circumstances which requires a different showing. The pleadings must be filed with the business office by 10:00am the day before the hearing. Ex parte applications which do not include an Order specially prepared will not be considered.

There are also procedures for law and motion, evidentiary hearings and trials.

Continue reading "San Diego Probate Court N-23: Policies and Procedures: August 2011" »

The San Diego Superior Court website has information about probate and other areas of the law. For probate, each department has its own policies and procedures. This article will focus on some of the procedures and policies for Department 2.

For ex parte, or emergency hearings, which are contested are heard on Tuesday and Friday at 8:45am by reservation only. All moving papers and declarations must be filed in the business office no later than 10:00am the day preceding the hearing. The procedure for the reservation can be obtained at the business office and can be complicated. All parties asking for emergency relief must provide notice and meet other requirements which include a declaration and the necessary attendant pleadings. There must be an affirmative factual showing in the declaration which contains competent testimony based on personal knowledge of immediate danger, irreparable harm or other legal basis for the emergency.

Law and motion matters are heard on Tuesday at 1:45pm and are governed by the California Code of Civil Procedure and the California Rules of Court.

Continue reading "San Diego Probate Court 2: Policies and Procedures: August 2011" »

In San Diego, the San Diego Superior Court has three probate departments. Each department is different for the policies and procedures. This will be a series of three postings with links to the San Diego Superior Court website page with that probate court policies and procedures. These can change without notice so make sure to confirm that these are still in effect for your pending case. For Probate Court 1, the policies and procedures are very detailed.

For emergency relief, also referred to as an ex parte, the moving papers must show extraordinary circumstances as a prerequesite showing. This includes a written declaration under penalty of perjury showing that irreparable harm, immediate danger or some other extraordinary circumstances exists with personal knowledge. The pleadings must be filed in the business office and the ex parte applications are only heard on Tuesdays and Fridays at 8:45am. A reservation must be made and this is a limit on the number of reservations. There is also a notice requirement which needs to be strictly followed.

There are also policies and procedures for law and motion, trials, evidentiary hearings, telephonic appearances and telecourt.

Continue reading "San Diego Probate Court 1 Policies and Procedures: August 2011" »

The United States Supreme Court, on June 23, 2011, decided that the order from the Bankruptcy Judge did not have the consitutional authority to "reach" into probate court. In San Diego, there are different courts for different issues. The San Diego Superior Court decides probate cases and the United States Federal Court decides bankruptcy issues.

USA Today posted an article about this case. Celebrity cases attract media attention and the case of Anna Nicole Smith has attracted a lot of attention. Anna Nicole Smith received millions of dollars during her life from her husband [E. Piere Marshall] however her estate asked for millions more. The United States Supreme Court is the highest court in the United States and the other courts are bound by their decision.

It is unknown whether this decision will end this case. It is clear that it is crucial, whether you are a celebrity or not, to have a valid estate plan so that your wishes are carried out after your death and to save your surviving heirs the cost and expense of extended litigation.

Continue reading "Anna Nicole Smith: United States Supreme Court Decision" »

The New York Times, in an article from 2011, discusses that avoiding probate with a revocable living trust is a very good strategy. Using a revocable living trust can avoid the probate system in which a will is determined to be valid or not valid and the estate is administered by the Court. It is important to note that only assets in the trust avoid probate. As such, it is very important to have your trust updated and to include assets into to your trust which were acquired after the trust was executed.

Even if you have a revocable living trust, some assets will avoid probate even though not placed into the trust. Examples of this are retirement assets, life insurance, savings bonds as well as some jointly titled accounts such as bank and brokerage accounts. It is very important that your wishes are carried out, after death, and having joint accounts allows access by another which may not be the testator's wishes after death.

Continue reading "Probate: New York Times Article: Risks to Avoid: 2011" »

The Los Angeles Tmes, in an article from 2011, has an extremely short article on this issue. In the article, it is stressed that understanding probate and trusts can make it easier to manage assets after death and during life. The probate administration process can be very complicated and legal representation is essential to analyze any probate estate.

It is also important to understand the strategies to avoid probate. Probate administration can be expensive, time consuming and allows the estate to become public knowledge. Many would prefer not to have their life exposed in such a public way upon their death and also not to have the distribution of their estate take months, or years, with the attendant costs. One strategyy to try and avoid probate is a revocable living trust. A revocable living trust can avoid the probate fees and costs, take much less time in the trust administration and keep the assets and distribution from becoming public.

Continue reading "Probate Administration: Understanding Trusts: Los Angeles Times Article: 2011" »

In San Diego, many parties involved in probate litigation would like to settle their case. In some cases, emotions and other factors may prevent this. The San Diego County Superior Court has a probate mediation program. Mediation, in probate court, is a non binding and confidential process in which a trained mediator will act as a neutralk to assist in reaching a settlement of all issues as much as possible.

The parties can resolve the matter with the assistance of the mediator. The mediation process may avoid a trial which would save the parties thousands on legal fees and also the uncertainty of the trial result. Mediation can include guardianships, conservatorships, trusts, estates and probate. For the selection of the mediator, the San Diego Superior Court maintains a binder in each probate courtroom and also the business office at both the Madge Bradley Courthouse and the Vista courthouse.

The selection of the mediator can be crucial in the outcome of the case.

Continue reading "Probate Mediation: San Diego Superior Court: 2011" »

The San Diego Superior Court has instructions on how to transfer a vehicle without probate. On the probate section, there is a section discussing the transfer of a vehicle without probate. The California Department of Motor Vehicles also has a section on the transfer of a vehicle without probate. To transfer a motor vehicle without probate, the below is the procedure.

The following documents must be submitted to the California Department of Motor Vehicles [DMV]: a title certificate; odometer disclosure statement; statement of facts with the applicable provisions completed; affidavit for transfer without probate and, if owned jointly by two or more deceased person a death certificate for each owner who is deceased. The transfer of ownership cannot be sumitted until 40 days after the death of the owner. If registration fees are due before this period, then these should be paid to avoide penalties.

There is a fee for the transfer of the vehicle ownership. These fees could include any past due amounts or penalties.

Continue reading "San Diego Probate: Transferring a Vehicle without Probate: 2011" »

The San Diego Superior Court has a probate timeline on their website. The administration of probate can be very complicated and time consuming. The timeline guidelines below are not necessarily what will happen in your case and is used for a general outline of the process and probate timeline.

The first step is to file a probate petition. A hearing will be set and will be from 4-6 weeks after the petition is filed. During this time, you will need to publish the notice of the petition to administer the estate and mail notice of the petition to administer the estate to all persons who are entitled to receive notice. There are very strict time periods and an attorney can assist.

The second step is to check the probate notes, before the hearing, to make sure that there are no defects in the petition and that all necessary documents have been filed.

After the Probate petition is approved, you must submit your Probate Orders, letters and a bond if required. After a minimum of four months from the date of the hearing, you may prepare your inventory and appraisal and file with the San Diego Superior Court, Probate Division and send to the San Diego County Probate Referee. In addition, there must be notice given to all known creditors and you will either accept or reject these creditor claims. Debts will be paid and tax returns filed and, again, there are strict deadlines. Usually 12-18 months from the date of appointment, there will be a final accounting and distribution.

Continue reading "San Diego Superior Court Probate Timeline: 2011" »

In San Diego, the filing of a petition for probate is the beginning pleading to allow the San Diego Superior Court to obtain jurisdiction over the decedent's estate. When the court appoints a personal representative, there are many liabilities and duties. In probate litigation, it is very important to understand your rights and also your responsibilities.

Some duties include managing the assets of the estate. Considerations for this are as follows: interest bearing accounts and other investments; keeping estate assets segregated; prudent investments and there are other restrictions. There may be a bond equired in order to be appointed at the personal representative.

Other duties include an inventory of the property of the estate. Considerations for this include filing an inventory and appraisal, determining the property value, locating any property of the estate and filing a change of ownership if necessary. There are many duties in addition to these and also included in this general description and also liability if the law is not followed.
The personal representative may also have to give notice to creditors, obtain insurance and keep accurate and complete records.

Continue reading "Duties and Liabilities of a Personal Representative in Probate Court: San Diego, California" »

The San Diego Superior Court has a lot of information on different areas of the law. The divisions are broken down by area of law and there is a section devoted to probate which has information on many probate issues.

Information includes the definition for probate as a court supervised process for gathering and identifying the assets of the decedent as well as distributing the balance to beneficiaries after paying expenses, debts and any taxes owed to the IRS. Probate also involves the transfer of property of the decedent to beneficiaries. Probate can also involve deciding if a will is valid and other issues brought before the Court.

Not every estate has to go through probate. In San Diego, California, for estates under $100,000, there are procedures to transfer property without a court order. The valuation of an estate can be difficult and needs to be completely accurate.

Continue reading "San Diego Probate Court: Wills, Trust and Estate: 2011" »

In San Diego, the San Diego Superior Court has jurisdiction regarding probate cases. One division is the Probate Court. The Probate Rules are very important as they must be complied with any probate case.

The Probate Court Rules include the probate rules under title seven, the probate local rules, the San Diego County Superior Court rules which are effective January 2, 2011, the Probate Court 1 polices and procedures, the Probate Court 2 policies and procedures as well as Probate Department N-23 polices and procedures. It is very important to fully comply with all of the rules and they can be very complicated.

Probate administration can be a very stressful experience for the parties. One of the probate procedures includes the Probate Examiners. There may be a tentative ruling and/or a telephonic court conference before the hearing. The court calendar can often have many parties appearing on the same morning or afternoon and cases can also be continued.

Continue reading "2011: San Diego Probate Court Rules" »

The estate planning attorneys at Scott C. Soady, A Professional Corporation handle not only estate planning, conservatorships, guardianships, and will and trust litigation, but also many probate matters. We receive a lot of calls from individuals who have a lot of questions about probate. Here are some the frequently asked questions about probate in California and more specifically in San Diego.

1. What is Probate? Probate is the court process in which the estate of a deceased person is inventoried, appraised, and distributed to either the beneficiaries of a will or to the heirs at law of a person who has died without a will or trust (ie. intestate).

2. Why is Probate Necessary? When someone has died, whether there will be a probate depends on whether the decedent had all of his assets in a living trust or joint tenancy. If so, then there is no necessity for probate. If a person has died with a will rather than a trust, there will have to be a probate. If the person had no estate plan, ie. no trust or his assets were not in joint tenancy or in payable on death accounts, his estate will have to go through the probate process to distribute the assets to the decedent's heirs at law. The probate procedure in the county where the individual died will see that the estate is inventoried and appraised, debts of the decedent are paid, and that the property is distributed to the proper individuals.

3. What Happens During the Probate Process? The first step in a probate is for the Court to appoint a personal representative, either someone who has been named as executor in a will, or in the case of no will, someone who petitions the Court to be the administrator of the estate. Once appointed, the personal representative will identify all the assets, usually post a bond, determine what debts need to be paid from the estate, appraise all the assets, pay any taxes due, sell any property that needs to be sold, and eventually distribute the assets to the beneficiaries or heirs. The personal representative needs to keep accurate records and usually is required to file an accounting with the Court unless an accounting is waived.

4. How Long Does Probate Take? Probate in San Diego can take anywhere from seven to eight or nine months to over a year. Part of the reason is takes so long is that there are time periods which are set by the Probate Code. Once the petition is filed to probate an estate, it can take 4 - 6 months for an administrator or executor to be appointed. Sometimes the hearing on the petition gets continued from the original date set for hearing because of “defects” in the petition which have to be corrected before the Court can rule. Sometimes other individuals besides the Petitioner want to be appointed the administrator or executor and there has to be a court hearing on who will be appointed. Once someone is appointed, notice has to be given to the deceased’s creditors who then have 4 months to file a claim. Other issues can arise which lengthens the time before probate is involved such as the number or type of assets which have to be appraised, whether the property is going to be sold, if an ongoing business is involved, or disputes between the beneficiaries or heirs.

5. How Much Does Probate Cost? The expenses of probate include fees paid to the executor or administrator, fees paid to the probate attorney, and court costs. Fees for acting as an executor or an administrator are set by the California Probate Code and are based on the gross value of the estate. Currently the fees are 4% of the first $100,000; 3% of the next $100,000; 2% of the next $800,000 and ½ % of the next $15 million. The personal representative (administrator if there is no will and executor if there is a will) are entitled to the same fees as the attorney. Court costs include filing fees, publication costs, bond cost, fee for probate referee, and recording costs.

6. How Can I Avoid Probate for My Beneficiaries or Heirs? The simplest way to avoid the probate process is to create a revocable living trust. Read more about the importance of trusts and how they avoid probate on our website. Other ways to avoid probate are to have all of your assets in joint tenancy or in assets that have designated beneficiaries upon your death.

We assist clients everyday to create an estate plan to avoid probate. We also can handle your probate matter if a loved one has died and you are the executor of their will or want to be appointed an administrator of an estate. Call us with any questions and to schedule a complimentary consultation.

Bobby Fischer, the former world chess champion, died in 2008 and yet the fight over his estate goes on. You may remember Bobby Fischer won the world chess championship in 1972 when he beat the Russian Boris Spassky in Iceland during the period of the cold war.

Fischer was born in the United States but was living in Iceland when he died in 2008 with no will. Four individuals were fighting over his probate estate, said to be worth between $2 and $3 million. Two are Fischer’s nephews Alexander and Nicholas Targ who live in California. The third is Marilyn Young who claims to have a daughter by him, named Jinky Young. Fischer had apparently been giving Jinky’s mother money for Jinky’s support and wrote postcards to the child which he signed as “Daddy.” The fourth is Miyoko Watai, a Japanese woman who married Fischer in 2004 and therefore is his widow.

To resolve the issue of the competing claims, the Court in Iceland ordered that Fischer’s body be exhumed to obtain a DNA specimen to determine if Jinky Young is in fact his daughter. Those results showed that she was not his daughter so then the contest continued between the widow Miyoko Watai and the two nephews. In March of this year, the court in Iceland ruled that his Japanese widow is his heir and entitled to his estate. The new nephews had claimed that the widow did not produce sufficient documentation that they were married and may appeal the court's ruling.

Once again these kinds of will contests occur because seemingly intelligent and knowledgeable people do not create an estate plan. This protracted litigation could have been avoided had Fischer had a will or better yet, a trust. You don't need to be wealthy to need a trust. Evem people with a small to moderate estate can benefit from a trust. A trust not only provides for the distribution of your estate upon your death but also has provisions for any periods of incapacity and provisions for the care of your minor children should something happen to you. Contact us at Scott C. Soady, A Professional Corporation to set up an appointment to get started on your estate plan.

As the successor trustee of a trust, executor of a will, or the administrator of an intestate estate (ie. no will or trust), one of your duties will be to pay all taxes due the federal government and the state of California.

Personal Income Tax Returns Once someone has died, a personal income tax return will have to be prepared and filed for the year of the decedent’s death. Income received by the decedent from January 1 until the date of death will have to be reported. If the estate receives income however, after the date of death, that will be reported on the estate tax return. Deductions for medical expenses of the decedent can be taken for one year after the date of death, to take into consideration expenses of a last illness. All other deductions, such as for mortgage interest, property taxes, etc. must have been expenses incurred prior to the date of death.

Fiduciary Tax Return The estate income tax return, call a fiduciary tax return, is filed annually as long as the estate is open. Dividends, interest, capital gains, and rents are all reported on this return. Deductions can be taken for mortgage interest the estate pays on real property and legal and administrative fees. This return, unlike the personal return, can be filed on a fiscal year basis. The duty to file a fiduciary return exists as long as the trustee, executor, or administrator is administering the estate. The final fiduciary return can be filed when the estate is in a position to be closed and final distributions made to beneficiaries.

Estate Taxes If a person dies in 2011 with over $5 million in assets, an estate tax return also has to be filed within 9 months of the date of death. Extensions for 6 months can be obtained. If there are gifts to qualified charities, those can be deducted as can debts of the decedent such as funeral expenses, last illness medical expense, and legal fees. The current federal estate tax exemption is $5 million which will last until 2013. Congress can act before that date to keep the exemption at the current rate or to change the exemption Keep in mind that it is the federal estate tax exemption in the year of death that governs.

Other Taxes Another type of tax that will have to be paid by the trustee, executor, or administrator of an estate is property taxes if the estate owns real property. A gift tax may also be necessary if the decedent made gifts in excess of the gift allowance for the year of death.

To help you with tax issues, the attorneys at the Law Office of Scott C. Soady, A Professional Corporation will work with the decedent’s CPA or the trustee, executor, or administrator’s CPA. We also have CPA’s we can refer you to for assistance with tax issues. It is an extremely important that all tax issues are handled competently and efficiently since there may be substantial penalties and interest that may be incurred if not handled correctly.

A simplified probate procedure may be possible with a spousal property petition. Such a petition can be used to transfer assets from the deceased spouse to the surviving spouse or domestic partner without the time and cost of a formal probate.
The spousal property petition can be used if the decedent had a will and the only beneficiary was the surviving spouse or domestic partner. If other beneficiaries are named in the will, however, this procedure cannot be used and a formal probate will be necessary to transfer the assets to all the beneficiaries. If the decedent died without a will, leaving only a surviving spouse or domestic partner, the procedure can also be used. The property is distributed in accordance with the laws of intestate succession. Community property will be transferred to the surviving spouse or domestic partner through the spousal petition. Separate property, if there is any, will have to be distributed through formal probate. If there is property in joint tenancy, that will be distributed to the joint tenant without any probate.

The surviving spouse or domestic partner files a petition with the Probate Court setting forth the facts as to why he or she is entitled to the community property, listing the property to be distributed, the decedent’s date of death, date of marriage, etc. A court hearing is set in the probate court after notice is given to everyone mentioned in the will and the heirs of the decedent. If the court grants the petition, the order is then recorded with the County Recorder in each county where there is real property. Copies of the order may be used to show financial institutions and investment companies to complete the transfer.

The spousal property petition is a good way to distribute community property to the surviving spouse when the only assets to be distributed are community property. One big advantage is that the cost of such a petition is much less than a formal probate. There are some reasons however, why the spouse may not want to take advantage of the spousal property petition. One reason might be that there are creditors who will be making claims, or it is likely that there will be a will contest, or litigation. Also if the decedent created a trust, there is no reason to use the spousal property petition or probate at all. Trust administration is usually done without the assistance of the probate court.

The estate planning lawyers at Scott C. Soady, A Professional Corporation can assist with determining if a spousal property petition would be available for you. If you have lost a spouse and need information about trust administration or probate, contact us for a complimentary consultation.

If the value of an estate is less than $100,000, California law provides a way to transfer the assets of the decedent without formal probate. The procedure is outlined in Probate Code section 13100, a process sometimes called a “small estate affidavit.” This method can be used to distribute assets such as cash accounts, stock, bonds, personal property, or even real property if valued below the limit.

How do you calculate whether the estate is valued at less than $100,000? The assets of the decedent that must be counted are bank accounts, brokerage accounts, stocks, bonds, mutual funds, real property, other investments, and personal property. Assets that you don’t have to count are property in joint tenancy, assets held in trust, IRAs, 401(k)s, and other pension plans, life insurance proceeds, automobiles, and payable on death (POD) accounts.

What is required to transfer assets? The process requires an affidavit with information about the gross value of the decedent’s real and personal property, the allegation that the decedent’s assets do not exceed $100,000, and that 40 days have passed since the decedent’s death. The person completing the affidavit, the “affiant” must also allege that there has not been a probate administration, must describe the property to be transferred and allege that the affiant(s) are the persons entitled to the property as the beneficiaries under a will or because they are heirs of the decedent who had no will. The affidavit must be signed under penalty of perjury and notarized. Sometimes banks or companies which hold stock will also require that the beneficiaries or heirs get their signatures guaranteed by a medallion. The affidavit and other paperwork is sent to the institution that holds the assets who then transfer the assets into the names of the beneficiaries or heirs.

The small estate affidavit procedure should not be used when there are significant assets in the decedent’s estate (more than $100,000) or where there is significant debt. The procedure should also not be used there the estate is insolvent or close to insolvent because the estate can benefit from the creditors’ claims procedures available with ordinary probate. Ordinary probate may also be necessary if the beneficiaries or heirs dispute how the property should be distributed.

For other questions about California probate, contact us at Scott C. Soady, A Professional Corporation. We can answer all your probate questions and guide you through probate or one of the summary probate procedures.

A family member has died and you have to open a probate estate (if he died with a will or with no estate plan) or administer the decedent’s trust (if he had created a revocable living trust). In what county do you open the estate?

The county where an estate is handled is the county where the decedent was domiciled. Domicile is the permanent residence of an individual. In most cases, it is clear where the decedent was domiciled but in a few instances it may not be so clear.

If a decedent died in a hospital while on vacation, from accident, surgery, or illness, his domicile is still where he lived permanently, so if that is San Diego county, then the San Diego Probate Court would be where the will is admitted to probate or San Diego would be where the trust is administered. On the other hand, what if the decedent decided to move to another county to live with relatives or to live in an assisted living facility? Then domicile has to be determined by looking at such factors as where the decedent owned property; where was the residence of the decedent; where did the decedent receive mail, where was the decedent registered to vote; in what state was the decedent’s driver’s license issued. These factors may lead a court to conclude that the intent of the decedent was to change his domicile to another county.

Another situation in which domicile can be an issue is when the decedent was in the military. People in the military may be stationed or deployed at one location and maintain a residence elsewhere. The general rule is that the county of domicile is where the decedent resided, whether at the time of enlistment or where his family lives and owns the family home at the time he died.

For questions about where to file for probate or administer a living trust, call the estate planning lawyers at Scott C. Soady, A Professional Corporation for a free consultation.

Probate in California is the legal process whereby the Probate Court supervises the distribution of assets of someone who has died with a will OR a person who has died without a will or turst (i.e. intestate). The Court also determines the validity of creditor's claims and sees that taxes are paid. After all the decedent's assets are inventoried and valued, and debts and taxes paid, the Court distributes the decedent's assets in accordance with the will or in the case of no will, according to the Probate Code provisions for intestate heirs.

What assets are subject to probate?
1. Assets that are in the name of the decedent.
2. One-half of each community property asset owned by the decedent and spouse.
3. The decedent's interest in real property owned with others as tenants in common.
4. Personal property of the decedent such as cars, furniture, artwork, books, etc.

What assets are not subject to probate?
1. Assets held in a revocable living trust.2. Assets held in joint tenancy with other joint tenants.
3. Assets which have designated "payable on death" beneficiaries or "transfer on death" beneficiaries.
4. Assets held with your spouse as community property with right of survivorship.
5. Assets with named beneficiaries such as life insurance, IRAs, retirement plans, and pensions.

Many people have difficulty handling a probate by themself. There are many deadlines and tasks that people have to do as an executor or an administrator that they feel more comfortable with retaining a lawyer to assist them.. The estate planning lawyers at Scott C. Soady, A Professional Corporation can help you with the probate procedure. Call us if you have a loved one who has passed away with a will or without a will or trust and we will help you get through the process with ease.

If you do not have a will, or better yet, a trust, your estate will be distributed according to the laws of “intestacy” set forth in the Probate Code. There may be a difference between how your estate is distributed according to your wishes and how it will be distributed pursuant to the Probate Code. Here are some disadvantages of intestacy you might want to consider:

1. The Court chooses the individual who will distribute your estate. The Court will appoint someone called the administrator to manage your assets and distribute them to your heirs at law. Maybe the person appointed is the person you would have chosen anyway but maybe not. Maybe two or more individuals will apply to the Court to be named administrator causing discord in the family.

2. The process of probate takes a long time. When you die without a will or a trust, the probate process here in San Diego typically can take a year or longer. The administration of a trust usually progresses much faster. If there are issues that need court intervention, the trustee can petition the Court for assistance, but most trust administrations are handled without going to court.

3. The Court may have to choose a guardian for your minor children. If you create a will or trust, you will name the person or persons you want to raise your children. Without an estate plan, the Court will determine who will be the guardian from those individuals who agree to be the guardian. Again more than one family member or friend may petition to be the guardian causing disharmony. The Court will have to make the determination without any input as to who you would have chosen.

4. With probate, rather than administration of a trust, it can be difficult to come up with money to pay debts, funeral expenses, or a family allowance. With a properly drafted revocable trust, these issues are spelled out clearly in the trust so that the individual distributing the trust (the trustee) can quickly take care of these issues.

At Scott C. Soady, A Professional Corporation, we handle both probate and trust administration as well as custom revocable living trusts to fit your needs. Call us for assistance with these or any other estate planning needs.

What happens when someone dies and they have property in California but the decedent can't be found? Sometimes people go missing and are never found. Sometimes it is asssumed that someone has died in an aviation accident with no remains found. Sometimes even criminals suddenly disappear with a suitcase full of money, never to reappear. That happens to their estate?

For the immediate needs of maintenace and protection of property, a trustee can be appointed for an individual who has been missing for 90 days and is presumed to be alive. What if the individual is presumed to be dead and has been missing for a long time? The famiy needs to be able to take care of debts and take over other financial matters of the decedent.

California Probate Code section 12400 - 12408 provides a method of administration and distribution of an estate of a decedent who has been missing continuously for 5 years. This "presumed dead" petition must be filed in the county where the missing person last lived if the person resided in California. If the decedent was not a California resident, the petition can be filed wherever the decedent owned property in California. The petition must state the time and circumstances of the disappearance, last known residence, and a description of what search and investigation occurred concerning his or her disappearance. The Court determines at a hearing whether the person can be presumed dead or there should be further investigation. If the Court finds that the missing person is presumed dead, the Court can also determine the date of death and appoint a personal representative to administer the estate in the same manner as any other decedent's estate.

If the missing person suddenly appears, he has the option of recovering his property from the beneficiaries under Probate Code section 12408 as long as it is within 5 years since the distribution of assets. Other factors the Court will consider are the reasonableness of the circumstances and the cost of legal fees and administration.

As of November 1, 2010, the cost to file for probate is increasing to $395. This fee is set by the Court and the size of the estate is not considered. What other costs are involved in probate?

The person petitioning the Court to be appointed administrator or executor will also have to publish a notice in the local newspaper, showing the decedent's date of death, who is petitioning to administer the estate, and the contact information of the executor/ administrator so that creditors and other interested persons can contact them. The cost of publication is approximately $350 - $500.

Once the assets have been inventoried, they need to be appraised. Usually this is done by the probate referee who charges approximately 1/10 of 1% of the appraised value of the asset. If there are multiple real properties or items of personal property that have to be appraised, there may be several appraisals, adding to the cost of probate.

Sometimes a bond is required which insures against administrator or executor misconduct which causes a monetary loss. Obtaining a bond can be another cost and is in the discretion of the court if there is no will which waives bond. Bonds can cost anywhere from hundreds of dollars to thousands of dollars depending on the size of the estate.

Attorney's fees also add significantly to the cost of probate. Attorney's fees are set by the Probate Code: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000. Also keep in mind that the attorney's fees are computed on the gross value of the asset. For example if the decedent left a $500,000 house with a $400,000 mortgage, you might think the fees are based on $100,000 but that is not the case. Fees will be calculated on the $500,000 value.

Administrators and executors are entitled to claim the same amount of money for administering the probate estate as the attorney. As an example, with a $1 million estate, attorney's fees will be $23,000 and administrator/executor fees will also be $23,000 for a total of $46,000.

Probate can be a costly and time consuming process, which can be eliminated or substantially reduced by using a revocable living trust as your estate plan. Contact us if you have a probate matter or would like to prepare a trust to avoid probate.

Many people ask whether as family members they can be responsible for a loved one's debts. Often debts can rapidly accumulate especially if a decedent has had a long illness.

If the decedent left an estate that is solvent, the estate will pay the expenses of a last illness and any debt. The personal representative (trustee, executor, or administrator) will be the one to pay off the debts from the assets of the estate before any distributions are made to beneficiaries. A solvent estate is one where the value of the assets is more than the debts. The personal representative if the decedent had a trust will be the successor trustee. The personal representative if the decedent had a will is the executor. If the decedent had no will or trust, the personal representative will be the administrator.

If the estate is not solvent, it means there are not sufficient assets to pay all the debts of the decedent. If there are sufficient assets to pay some of the bills, the bills will be paid in a certain order. That order of payment is as follows:

1. Expenses of administration
2. Secured obligations such as mortgages and judgment liens
3. Funeral expenses
4. Expenses of last illness
5. Family allowance
6. Wage claims
7. General debts.

If there are insufficient assets to pay all the bills, the beneficiaries will not get a distribution and they will not be responsible for paying any of the debts unless other circumstances exist. For example, if a beneficiary or some other individual co-signed on a loan with the decedent or was a guarantor, that is a contractual obligation which will make the co-signer or guarantor liable for the debt. Without some contractual obligation however, family members are not liable for their loved one's debts. Even spouses are not liable for a debt that was solely their spouse's.

Probate and trust administration are a large part of our estate planning practice. We assist trustees, administrators, and executors handle all aspects of administration including payment of debts and distributing assets. Call us if you need assistance with these issues or any other estate planning concerns.

Probate is the legal process instituted in the Probate Court to determine the beneficiaries of a person’s estate and distribute the probate assets to the person's heirs or beneficiaries. Ancillary probate is an additional probate proceeding that is required in addition to the state where the decedent lived and died usually because the decedent owned property in another state. That property could be real property, a car, boat, farm, vacation home or timeshare. The laws of the state where the property is located will determine the costs of the ancillary probate and in some cases, who receives the property after the ancillary probate.

One of the disadvantages to having an ancillary probate in addition to the one in the home state is that it will add to the total cost of administering the probate estate because of additional filing fees, appraisal fees, and attorneys’ fees. Also if the probate estate is an intestate one, that is, a probate because there was no will or trust, the persons entitled to receive distributions could be different than those entitled to inherit in California.

For example, in California, the estate of a person dying with no will and leaving a spouse and one child would be distributed one-half of the community property to the spouse and one-half to the child. As to separate property, it would be distributed one-half to the surviving spouse and one-half to the person’s child. In New York, if a decedent is survived by a spouse and one child, the surviving spouse would receive $50,000 and one-half of the residue of the estate; the child would receive the balance.

In addition, the costs for the ancillary probate could be different in the ancillary state. In California, attorneys’ fees are set by the California Probate Code. A $500,000 estate in California would result in $13,000 in attorney’s fees. In states such as Nevada and Arizona, attorneys usually work by the hour. In other states such as Florida, attorneys’ fees are to be “reasonable” according to the guidelines of the statute. In Florida the attorneys’ fees for a $500,000 estate presumed to be reasonable are $15,000. Costs for each probate proceeding for such things as filing fees, postage, and copying can also vary from state to state.

If you own property in more than one state, a living trust would avoid the costs of probate in California and ancillary probate in the state where you own property. A revocable living trust also allows you to designate who you want to inherit your assets. If you do no estate planning, then the state or states where your property is located will determine who receives your property. Contact us at Scott C. Soady, A Professional Corporation to see if a revocable living trust is for you or if you find yourself involved in the probate process in San Diego.

In many past blogs, we have emphasized the importance of transferring all assets that are trust assets into the name of your revocable living trust. This is important because if you pass away and there are assets in your estate that were not transferred into your trust, those assets will be subject to probate. Probate can be long and costly and avoiding probate was probably one of the reasons you created a trust.

When you create a trust with Scott C. Soady, A Professional Corporation, LLP, the assets that are being transferred into your trust will be listed on your Schedule of Assets. This would include any real property, bank accounts, mutual funds, stocks, bonds, business interests, and personal property. After your trust is in place, you may acquire additional assets, open a new bank account, buy a second home or a different home, or purchase other assets that should be transferred into the trust. All of these "new" assets should be titled in the name of your trust and your Schedule of Assets updated.

If an asset is not properly transferred into the name of your trust, there potentially may be a way to avoid probate proceedings. There is an action called a Heggstad petition, named after a 1993 case entitled Estate of Heggstad. With this petition, it may be possible for the Court to determine that an asset not actually titled in the trust at the time of death is in fact a trust asset. The court looks to the Schedule of Assets to see if the asset was listed and if so, infers there was an intent to transfer it. If the court grants the petition, the court orders that the asset is a trust asset. The Heggstad petition thus avoids the full probate of the estate.

For assistance with your Schedule of Assets or to create a trust or amend a trust, contact us for a complimentary consultation. We also handle probate, trust administration, guardianships, conservatorships, and estate and trust litigation.

Attorney's fees for probate in California are set forth in the Probate Code Section 10810. The maximum fees that can be charged by the probate attorney are:
4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million.
The value of the estate for purposes of attorney's fees is the gross value of the estate, so that if the decedent owned a home valued at the time of death at $500,000 with a $300,000 mortgage, the $500,000 figure is used.

An attorney may also request extraordinary fees based on Probate Code sections 10801-10811 which allows additional compensation for "extraordinary services" in an amount that the Court finds is just and reasonable. Some services that set forth in those sections are:
1. Sales of real or personal property.
2. Contested or litigated calims against the estate.
3. Defense of a will contest after a will is admitted to probate, even if the defense was not successful.
4. Defense of a will contest before the will is admitted to probate, however, in this case, the defense has to be successful in the sense that it benefitted the estate.
5. Preparation of income tax returns, estate tax returns, or other tax returns or the adjustment, litigation, or payment of any of such taxes.
6. Litigation involving estate property.
7. Continuing on the decedent's business if ordered by the Court.
8. Other litigation or special services that are necessary to prosecute, defend, or assist the executor or administrator in the performance of his duties.
9. Filing an accounting for the administration of the estate when such an accounting is required.

Most people would rather see their heirs receive their inheritances in the most cost-effective way possible. Although a living trust costs a bit more to create initially, in most cases, after death, the administration of the trust and distribution to the beneficiaries is much less expensive than what probate fees would be. Call us if you are interested in a revocable living trust package which includes a trust, will, power of attorney, advance health care directive, certificate of trust, assignments, and deeding your real property into your trust. Internet clients receive a 25% discount.

In California probate proceedings are governed by the Probate Code which sets forth certain time limits. Once a petition for probate is filed, you will receive a date for the first hearing in which an administrator or executor is appointed. The hearing is often 2-3 months after the petition has been filed. Once the representative has been appointed, notice has to be given to creditors of the decedent. Creditors have four months after publication of the notice of probate or 60 days after receiving actual notice, whichever is later to file a claim. Then the process begins of collecting and valuing all of the decedent's asset, paying the debts, taxes, possibly liquidating some assets, and finally distributed the assets to the heirs or beneficiaries.

The normal time for probate in San Diego county is between 9 months and 18 months. There are a number of factors that may make the probate process take longer. Some of these are:

1. Many beneficiaries
2. Beneficiaries that cannot be found.
3. A will contest brought to dispute the validity of the will. If a contest is filed, it will have to be decided before the estate can be distributed. Sometimes this can take years if there are depositions that have to be taken and either mediation or a trial.
4. Disagreements among the beneficiaries such as who should be the administrator, whether the accounting is accurate, whether there are beneficiaries that should be disqualified, or having to set up a guardianship of the estate for minors. Each time a petition or motion is brought in the probate matter to resolve a disagreement, it lengthens the time for closing the estate.
5. A taxable estate. If the estate has to pay federal estate tax, this can delay closing the estate. This is not a problem for decedents who passed away in 2010, however in 2011, if the Legislature does not act, the federal estate tax threshold will revert to $1 million making many more estates subject to estate taxes.
6. A complicated estate with unusual assets. Typical estates consist of real property, bank accounts, investment accounts, etc. If one of the assets is a business, however, it can take time to appraise such an asset. The same is true of oil or mineral rights or other unusual assets. If there are many assets, it can also take additional time to appraise all the assets and liquidate them if they need to be.

The estate planning attorneys at Scott C. Soady, A Professional Corporation handle many probate matters and can make the whole process easier for an executor or administrator. We offer free consultations so if you have a probate matter, give us a call.

When someone dies, either with a will or a trust, the assets owned by the decedent have to be valued to determine the fair market value. The date used for valuation of assets is usually the date of death. Sometimes the document, whether a will or a trust, will provide that another date can be used such as 6 months from the date of death. The important thing is that the date is consistent for all of the assets.

Assets that have to be valued can be real property, personal property, investments, bank accounts, IRAs, pension and retirement plans, stocks, bonds, mineral rights, and business interests. Some of these may not be trust assets but still have to be valued if there is going to be an issue with estate taxes. For example, assets held in joint tenancy may not be subject to probate or trust administration, but they still have to be valued for estate tax purposes.

Property such as real property is valued by obtaining a written appraisal by a licensed experienced professional appraiser. The appraisal should include descriptions and photos of the subject property, comparable sales, and a determination of value. Sometimes real property can also include having to appraise personal property as well such as farm equipment, livestock, crops, etc. or in the case of a professional building, the value of equipment and trade fixtures.

The value of personal property also is determined by an appraisal. For household furnishings, the IRS requires an itemized list of the furniture values. Items of jewelry or art should also be appraised by someone experienced in jewelry appraisals such as a gemologist or an appraiser that works in the art field. Other personal property that may need to be appraised may be automobiles, planes, or collections such as coins or stamps.

A business such as a family run business, a professional corporation, or a limited partnership also has to be appraised. Specialized appraisers may have to be retained to value the fair market value of the business and the decedent's interest in the business.

For stocks and bonds that have to be valued, their value on the date of death can be determined by the average selling price of the stock or bond on the date of death. Mutual funds can also be valued using the bid value or public redemption price of the fund on the date of death.

Bank accounts can be valued as of the date of death by bank statements.

Valuing assets can be a tricky and time consuming task requiring experienced consultants and an experienced estate planning attorney. We can assist with this task at Scott C. Soady, A Professional Corporation.
Call us if we can help.

Probate as you probably know is the court supervised process for transferring an estate to the beneficiaries of a will or transferring an estate to the heirs of someone who died without a will or a trust. Take the following quiz to see how much you know about wills and probate:

1. Probate only applies if you have a will. Answer: FALSE
If you die with a will, there will be a probate. If you die without a will and don't have a trust either, there will be a probate.

2. Probate applies to your entire estate. Answer: FALSE
Probate is necessary for your probate assets. Some assets are not considered probate assets. Examples are assets which have a named beneficiary like life insurance, payable on death accounts, and property you own in joint tenancy with a right of survivorship.

3. If you have a revocable living trust you always avoid probate. Answer: FALSE
Assets which are transferred into your revocable trust do avoid probate however many people create a trust and fail to properly fund it because they forget to title their assets in the name of the trust. The trust document is useless if you die with assets which should be in the name of your trust, and are not. Assets left out that are over $100,000 will be subject to probate.

4. If you die without a will and are married, everything goes to your spouse. Answer: FALSE.
In California if you die without a will (ie.intestate) your estate will be divided among your spouse and your children.

5. A will is cheaper than a trust. The answer to this question is, in most cases, FALSE.
It is true that a will is usually less expensive to establish than a trust, however a will has future costs. When you die with a will, the distribution of your estate will be through the probate courts. Your estate will incur statutory probate fees for the probate lawyer and for the executor. A trust is a little more expensive to prepare initially but your beneficiaries will not have the fees of probate.

For more information on probate or to create a will or a trust, contact the estate planning lawyers at Scott C. Soady, A Professional Corporation.

When a person dies in San Diego, the Probate Court will determine to whom the assets of the decedent will be distributed based on the laws of "intestate" succession. "Intestate" means that the decedent died without a will or a trust. Before you decide to file a probate proceeding without a will, make sure that it is indeed the case that no will or trust can be found. It can make a difference.

Look for a will or a trust in the decedent's home and business files, safety deposit box, or safe. Ask other family members if they recall the decedent mentioning that he or she executed a will or a trust. Find out if the decedent had a family lawyer who may have drafted an estate plan or referred the decedent to an estate planning lawyer. Often estate planning attorneys will keep the originals of clients' estate plans in their fire proof safes. Look through the decedent's collection of business cards to see if a lawyer is among them.

If no will or trust can be found, the steps in the probate process will be the same as for a probate with a will. The difference is in the distribution of the assets. A couple of examples will illustrate the difference:

1. Tom dies with a will or trust leaving all his property, community and separate, to his wife Karen. Tom also has a son. All of the property is distributed to Karen. If Tom dies wihout a will or trust, Karen gets all the community property but only half of the separate property. The child gets the other half.

2. Sally, a single woman with no family, dies with a will leaving half of her estate to her best friend Jan and the other half to a number of charities. If Sally had died without a will and no heirs could be found, her property goes to the State.

3. Mary dies with a trust that sets up subtrusts for her minor children and names a guardian to take care of them and a trustee to manage the trust making distributions at intervals of age 21, 30, and 35. If Mary dies with no estate plan, the Probate Court will have to appoint a guardian with no input as to who Mary would have preferred to raise her children and a guardian of the estate to manage their money until they turn 18.

These examples demonstrate that it can be important to make sure that the decedent in fact died without an estate plan. He or she may have had wishes that will not be carried out through intestate succession. Scott C. Soady, A Professional Corporation would be happy to assist you with creating your estate plan or probating the estate of your loved one who did not.

At Law Office of Scott C. Soady, A Professional Corporation, we often have people call us after reading our blog or website articles and ask such questions as "My father died but he didn't have much, just a home. Do I have to file for probate?" or "My grandmother left me her condo in her will but it isn't worth much? Do I still have to file for probate?"

The simple answer to these questions is probably "yes" in California. In other states where property values are lower, it may not be necessary but in California, if you are left real property and other assets valued at more than $100,000 and that property was not titled in the name of the deceased's living trust, or in joint tenancy with you, you will have to open a probate.

There is a summary procedure in California to transfer property after death if the total value of the probate estate is less than $100,000. A Petition to Determine Succession to Real Property can be filed pursuant to Probate Code section 13100 if the estate is less than $100,000 and more than 40 days have elapsed since the death. It is a rare case however where real property in San Diego County is worth less than $100,000. You could have a situation though where the real property was in a trust or in joint tenancy, and the remaining value of the estate not in trust or joint tenancy was less than $100,000 in which case those assets could be transferrred to an individual pursuant to this type of petition.

One of the ways to avoid probate or a small estate affidavit is to create a revocable living trust and put your home into the trust, which means titling the real property in the name of your trust by filing a deed with the county recorder. If your home is in your trust, your heirs won't have to worry about opening a probate to receive the property you leave them.

For probate issues and estate planning, call us to schedule a complimentary appointment.

When a loved one dies, often family members need to obtain a credit report to find out what debts are outstanding, what accounts are still open and need to be closed, and to verify there has been no identity theft. Decedents are often targeted as victims of identity theft. Scam artists track the obituaries in the newspapers, steal death certificates, or obtain identity information on online. They open up new credit cards or run up charges on exisiting accounts. Identity thieves even steal information and sell it to another scam artist, sometimes across the country, to avoid detection. It can take months before a family of the decedent becomes aware of the fraud.

You can obtain a credit report on someone who has died by writing to the three big credit bureaus: Equifax, Experian, and Trans Union. Inform them of the death with the decedent's full name, social security number, address, and date of death. Include a copy of the death certificate and your name and relation to the decedent. Ask for a current copy of the decedent's credit report and that a notice such as "Deceased - Do not Issue Credit" be put in the file. You may also want to request that any suspicious activity be reported to you. Send the letter certified mail.

You can also print out a thorough form from the Identiy Theft Resource Center

Dealing with the death of a loved one can be difficult. You don't need the added headaches of identity theft. If we can help with the death of a loved one, call us. We handle probate and trust administration and can assist with the legal process of administering a will or a trust or the probate of an individual without a will.

A family allowance is a amount of money which the Probate Court can order the estate of a decedent to pay to persons who the decedent was obligated to support or who the decedent was in fact supporting at the time of his death. Priority goes to family members such as a surviving spouse or minor children but parents and brothers and sisters can also request an allowance if they were supported in whole or part by the decedent. The family allowance must be reasonable in amount and is in the discretion of the judge based on the circumstances. The allowance, once ordered, continues until there is a final distribution of the estate or by further court order.

An unusual situation has arisen in the case of Michael Jackson' estate. Joe Jackson, the father of Michael Jackson, is seeking a family allowance in excess of $15,000 per month, claiming that he was dependent on his son for support. Michael did not provide for his father in his will or trust. The father and son had been estranged for years and Michael had stated he did not want his father to receive any part of his estate. Michael apparently was not supporting his father in the sense of writing him checks.

Jackson filed a petition in the Los Angeles Probate Court claiming his only income is $1770 from social security and his expenses exceed $15,000 per month. The Court has already ordered family allowances for Michael's children and mother. An evidentiary hearing will be he held in May, 2010. It will be interesting to see if the LA court orders an allowance on the theory that Michael supported his mother and she apparently gave some of that money to the father. As with many issues surrounding the singer's death, stay tuned.

In many San Diego communities, and especially at the beaches of La Jolla, Del Mar, Cardiff, Encinitas, and Carlsbad, there are people who own a home but make their residence in another state. Or maybe you live here in California and own a second home in Colorado, Oregon, Utah or some other state. Why is estate planning especially important for you?

If you own real estate or even tangible personal property in more than one state, each state will be involved in the distribution of your property upon your death unless you do estate planning. The state where real property or other assets is located has the authority to resolve issues of title to property. So if you make your residence in California but own a timeshare in Hawaii, a timeshare in Florida, and a cabin in Colorado, probate proceedings called ancillary probate will have to be set up in each of those states and in California. Ancillary probate could be necessary if you have cars, boats or airplanes registered in another state or oil, gas, and mineral rights. With the filing of a probate, comes additional costs and probate fees and additional time to conclude each probate.

There are several ways to avoid ancillary probate of property in another state. The best way to transfer title to out of state property upon your death is to have a revocable trust and record each piece of property in the name of your trust. Upon your death, there will be no probate, just the administration of your trust in California, a process that can be accomplished without multiple probates.

Another way is to title the real estate or personal property is to put the property in the joint names of you and your spouse with rights of survivorship, however if both you and your spouse die together, the property will need to be probated. If you want to title property in your name and some other individual as joint tenants, there are disadvantages. The joint owner can be sued and a judgment placed on the property which could keep you from selling the property. Also if you put another indidivual on title with you, the IRS could consider the transfer a gift, to which a gift tax may be applicable.

The bottom line is if you have real or personal property in different states, you need to plan carefully. If we can help with your estate planning, contact us.

In addition to handling probate, trust administration, and preparation of all types of trusts, we often get inquiries from heirs and beneficiaries with concerns about the way an executor, administrator, or trustee is administering an estate in San Diego. Sometimes beneficiaries cannot get an accounting of the trust assets. Sometimes they have issues with the distribution of assets. In some cases, they may have suspicions that the individual handling the estate is self-dealing or guilty of outright fraud.

The executor, administrator or trustee of an estate has a fiduciary duty to the beneficiaries. This means that they must act with the highest degree of honesty and integrity. They have certain duties under the law that they must fulfill. Among those duties are the duty to collect and protect the assets; duty not to commingle estate assets; and a duty to be impartial. They also are required to communicate with the beneficiaries, provide an accounting of the assets, and distribute the assets according to the testamentary instrument (will or trust) or if there is none, according to the Probate Code.

Law Office of Scott C. Soady, A Professional Corporation represents heirs and beneficiaries as well as executors, administrators, and trustees. If you can concerned about the way an estate is being handled, you have options and remedies. One remedy could be filing a petition in the Probate Court to have the Court address the issue, order an accounting, or remove an executor, trustee, or beneficiary. There are also civil remedies for fraud, breach of fiduciary duty, or constructive trust. If you are over 65 years if age, you may have a action for elder abuse.

Contact us for advice about your options if you are a beneficiary and have concerns about the way a will or trust is being administered or if you are an heir and believe you are entitled to an inheritance.

When you die without a will or a trust, you are said to have died “intestate.” The Court in the probate proceeding ,which will have to occur when someone dies"intestate,'" will determine who receives your estate based on California law. So if, for example, you are single with no children, your parents are your heirs and your estate will be divided between your mother and father.

But what about a situation where a father abandons his child at birth, has had no contact with his child, never paid child support, i.e. not really much of a father. Should that type of father inherit his son’s estate when the son dies? You are probably hoping the answer is “no”. Unfortunately the answer is that the father will inherit from the son, no matter what kind of a father he has been.

In a California case called Estate of Shellenbarger, decided by the Second District Court of Appeal in 2008, there were similar facts. The son died intestate (without a will or trust). Since the son was unmarried with no children, his parents are his heirs under California law. The administrator appointed by the Court tried to argue that the father should not receive any inheritance based on fairness, because he had left the mother prior to his son’s birth and never made any child support payments. The Court ruled that intestate succession is purely based on statute and a Court cannot disinherit an heir even on equitable grounds.

A similar result would occur if a father died intestate with no wife and 2 sons, one of which he had no contact with after the son left home at 17. The other son took his father into his own home and cared for him before his death. The two sons would inherit equally even though it may have been the case that the father would not have wanted his wayward son to inherit anything.

What this illustrates is that if someone dies without a will or a trust, the heirs are set by law. The statute which is set out in California Probate Code Section 6402 doesn’t take into consideration whether that heir had a relationship with the decedent or any other factors. A “bad” heir is still an “heir”.

If you think you might have a situation similar to the above examples, it is so important to get a will or a trust. Law Office of Scott C. Soady, A Professional Corporation can help you with the process of
naming the specific beneficiaries who will share in your estate upon your death so that your assets will be left only to someone you would have wanted to receive them.

In trust administration and probate in San Diego County, appraisals of the decedent's real property are an important part of settling an estate. At Law Office of Scott C. Soady, A Professional Corporation, one of the first tasks is to obtain an appraisal of real property as of the date of death. The appraisal, in addition to valuations of the rest of the decedent's estate, form the basis for determining the total value of the estate for purposes of distribution to beneficiaries.

Recently, a bipartisan amendment approved in October by the House Financial Services Committee proposes a new set of rules for obtaining appraisals. The old rules imposed nationwide by mortgage giants Fannie Mae and Freddie Mac, according to realtors and mortgage brokers, produced appraisals often below the agreed-upon price, causing delays and disputes and the necessity for multiple appraisals. The new rules are more likely to encourage independent appraisals, not influenced by loan officers and mortgage brokers. The new amendment has the endorsement of President Obama and the House of Representatives but may face an uphill battle in the Senate.

Appraisals are just one part of trust administration and probate. We use independent appraisers for real property and can help with appraisals of valuable personal property as well. There are numerous tasks that must be done by a successor trustee of a trust or an executor or administrator of a probate estate. Our estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation can assist you with all aspects of trust administration or probate. Please call or email with questions or to set a complimentary consultation.

Last month our blog concentrated on Probate in San Diego. If you have been reading our blog, you know that fees for an executor or administrator are statutory in California. The fees are set by the Probate Code and are the fees for both the executor/administrator and the attorney for the estate. On a $500,000 estate, for example, the executor or administrator’s fee would be $13,000 and another $13,000 for the attorney. Therefore on a $500,000 estate, together the fees would be $26,000 plus there will be other costs and fees to probate the estate.

Just because you are entitled to an executor or administrator fee doesn’t mean you have to take your fee. There may be reasons not to accept a fee. As a beneficiary, your inheritance is tax free. Your executor fee is not; it is taxable income. So if you are the sole beneficiary of your parent’s will, it makes no sense to take a fee. Waiving it will increase your tax-free inheritance.

If you are one of many beneficiaries, waiving your fee will cause the other beneficiaries’ shares to be greater which you may want or maybe not. Sometimes in a family situation, executors choose to waive fees just to insure more harmony in the family.

Law Office of Scott C. Soady, A Professional Corporation handles many probate matters and can advise you about taking or waiving executor/administrator fees as well as guiding you through the probate process. We are happy to answer any questions you have.

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 Law Office of Scott C. Soady, A Professional Corporation.

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 Law Office of Scott C. Soady, A Professional Corporation 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 Law Office of Scott C. Soady, A Professional Corporation.

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 Law Office of Scott C. Soady, A Professional Corporation 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.

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 Law Office of Scott C. Soady, A Professional Corporation 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.

You have no doubt watched movies or TV shows where everyone gathers in the lawyer's office, solemn and perhaps anxious about the "reading of the will". The will is then read aloud by the lawyer to all interested parties. It is unknown where this idea came from but it never happens in real life. There is no legal requirement that a will or a trust be read out loud to family members. As a practical matter, family members usually know where their loved one's will or trust is located and it may be several weeks until they even consult with a lawyer about what should be done. At that point, the lawyer may even provide copies to the beneficiaries.

With a will, the will is filed with the Probate Court to start the probate process and once that happens, the will is a matter of public record, open to anyone who wants to view it. That is how the public knows so much about celebrities and their wills.

If you have a trust, the trust which becomes irrevocable at your death, your beneficiaries and heirs are entitled to a copy of the trust but your trust does not become public. Privacy is one of the advantages of a trust over a will.

If you need assistance with determining what needs to be done after the death of a loved one, contact the estate planning attorneys at Law Office of Scott C. Soady, A Professional Corporation. We can help with probate or trust administration. Feel free to call us with any question you have about probate, trust administration or any other estate planning question.

If you have a will and not a trust, when you die your estate will have to go through probate. In general this means that all the property that the deceased owned at the time of death such as real property, personal property, bank accounts, investment accounts, etc. will be part of the probate estate. However there are some exceptions. You may have in your estate some assets that do not go through probate in California. These are some of them:

1. Property held in joint tenancy. 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 bypass probate and are paid directly to the named beneficiaries.

Another way you can avoid probate is to transfer your assets into a revocable living trust. Assets which have been transferred into the name of the trust are non-probate assets. Contact the experienced estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation if you would like more information about a trust or putting your assets into some other form which will avoid probate.

In our last blog, we talked about the timeline for probate in San Diego. Another question we are asked frequently is who is going to be appointed the executor or administrator of the estate? If there is a will created by the decedent, the will usually names the "executor." If that individual is unable or unwilling to serve and there are no successor executors named in the will, then the court may be asked to appoint an administrator with will annexed also known as an administrator CTA. If a person dies without a will, the person who handles the estate is called the "administrator." All administrators and executors have the same function which is to oversee the decedent's estate, including evaluating assets, paying bills, and distributing the estate to the beneficiaries.

Any interested party can petition the court to become the administrator. An interested party could be a family member or even a friend. There is however an order or priority which is set forth in the Probate Code. The following list shows the persons who have priority if they choose to be appointed:

1. Surviving spouse or domestic partner
2. Children
3. Grandchildren
4. Other issue ("Issue" means one's descendants)
5. Parents
6. Brothers and sisters
7. Issue of brothers and sisters (nieces and nephews of the decedent)
8. Grandparents
9. Issue of grandparents
10. Children of a predeceased spouse or domestic partner
11. Other issue of a predeceased spouse or domestic partner
12. Other next of kin.

Last in the priority list are other interested persons which could be friends of the deceased or even a creditor.

If you have any questions about probate or the appointment of administrators and executors, or want to petition the court to become one, contact us. at Law Office of Scott C. Soady, A Professional Corporation. Your initial appointment with us is always free of charge.

If your loved one who resided in San Diego has passed away with a will or no estate plan, there will have to be a probate proceeding in the Superior Court. Probate can be a lengthy and complicated process with deadlines that have to be followed. Most people want to know “how long is this going to take?” Every probate is different. There are no simple answers to that question. The time depends on what assets are in the estate, how easily they can be liquidated, whether you own property in other states, and other issues.

The following guideline gives you a basic idea as to what has to be done and when it is usually accomplished, assuming you contact us at Law Office of Scott C. Soady, A Professional Corporation or another experienced probate lawyer soon after the death.

Filing the will with the Superior Court - Within 30 days of death

File a Petition for Probate; Publication of Notice in local newspaper - Within 1 - 2 months

Hearing on Petition; Appointment of Executor or Administrator; Bond issued if necessary - 2 - 3 months

Notice to Creditors - Within 2 - 4 months

Inventory of Assets; Appraisal of all assets; Obtain a tax ID number, Pay bills - Within 4 - 8 months, depending on number and type of assets

Filing of an Estate Tax Return if required - Within 9 months of death

Filing of Federal/State Tax Returns - Within 6 - 12 months

Filing of an Accounting if necessary; File Petition for Final Distribution and Distribute Assets - Within 8 - 18 months

The above timeline is a general one. These are most of the steps which will occur but there may be other steps in your situation. Your probate may be longer or shorter depending on your loved one's estate and the court’s calendar. Litigation could also cause delays. If we can help with probate in your situation, contact us to schedule a complimentary appointment.

In the category of “stranger than fiction,” a lawsuit has been filed in Arizona by a man who was cut out of his mother’s will. The problem is that she is not dead yet. Here in the San Dieigo Probate Court, will contests are filed but after the death of the testator (the individual who made a will before their death.)

The lawsuit filed by Robert Jaeger seeks $1 million in punitive and compensatory damages from his brothers and sisters on the basis that they interfered with an expected inheritance by persuading his mother to cut him out of her will. Jaeger claims that he took care of his mother for seven years and in return she promised to leave him her house when she died. His mother changed her will to leave her estate to her other children instead. The mother, Patricia English, says that her son was unemployed, spent her money, failed to find work, and became more and more demanding. In any case, she says, she had the right to decide who should inherit her house when she died. The siblings are fighting over English’s house which has $130,000 equity. She has no other assets.

In Arizona as in California, there is no cause of action for interfering with an expected inheritance. Only Maine and Florida have such causes of action while the person who executed the will is still alive. The court in Arizona has ruled however that the suit can proceed.

Mary Jo Quinn, director of the San Francisco Probate Department has said she has never heard of siblings squabbling in the probate court while the parent is still alive and capable. “Anybody can sue anybody,”she said, “but the trick is they have to prove it.”

Stay tuned.

We know that many Americans procrastinate about getting a will or a trust done. Especially in this economy where people have a lot of challenges, an estate plan, even if desired, sometimes doesn’t work itself up to the top of one’s To Do List. What happens if you procrastinate about getting an estate plan?

Probate - Without a trust or a will, your estate will wind up in the probate court. Statutory fees will have to be paid to the probate attorney and the administrator of your estate. Probate is not private - anyone can view probate records - and the distributions to your heirs can be delayed for as much as a year and in some cases, longer.

Without a will or a trust, your surviving spouse may not inherit your entire estate. Your spouse will inherit all the community property but will only get 1/2 to 1/3 of your separate property. The remaining property will go to the children.

Minor children will not have guardians appointed. Without a designation of guardians for your minor children, the Court will have to appoint a guardian without any guidance from you as to your preference for the guardian or guidelines for raising the children.

Children may receive money outright and not be equipped to handle it. Without a trust setting forth increments for the distribution at various ages, children who are 18 will receive their money outright, all at once, which may not be a good idea for some young beneficiaries.

Special Needs Beneficiaries may lose their public assistance. If you have a child or other beneficiary who is on public assistance, inheriting money outright rather than into a special needs trust, may cause them to be disqualified from receiving those benefits.

Higher Estate Taxes - For those high net worth individuals, not having a trust can result in your heirs having to pay more estate taxes than necessary. Estate planning strategies like an A/B or A/B/C trust, irrevocable life insurance trusts, or other advanced techniques can avoid or reduce estate taxes.

Don't procrastinate any longer. Contact us at Law Office of Scott C. Soady, A Professional Corporation for a complimentary consultation to discuss your will or trust.

Have you ever wondered whether someone who murders another person can inherit from their estate? In years past, there have been several California cases where children have murdered their parents, sometimes for money, as was alleged in the famous Menendez case in Los Angeles. Two brothers, Eric and Lyle Menendez, were tried and convicted of murdering their parents in 1989 to inherit what they thought was a $14 million estate. As it turned out, after taxes, loans, and costs of defense, they each would have inherited only about $ 2 million each. They were prevented from inheriting their parents' estate.

The California Probate Code Section 250 has a section that provides that a person who “feloniously and intentionally kills the decedent” is not entitled to “any property, interest, or benefit under a will of the decedent or a trust...” This would also include life insurance proceeds or assets left to the killer as a designated beneficiary. You may remember Scott Peterson who was convicted of killing his wife. He was prevented from receiving benefits from his wife’s insurance policy.

All states in this country have similar laws to prevent someone who kills another from inheriting from the victim of their crime. In addition many states have adopted laws to make it difficult for convicted killers to sell their story and keep the money for themselves. These so-called “Son of Sam” laws came from the case where serial killer David Berkowitz, nicknamed the Son of Sam, was planning to profit from the sale of his story. California passed a “Son of Sam” law in 1986 prohibiting felons from profiting from their crimes. This law was struck down in 2002 as being unconstitutional. Today “Son of Sam” laws are sometimes put into plea bargains to provide that any profits from book deal or movies will go to the U. S. Treasury. Another remedy for victims is that they can sue their perpetrators in civil court, as in the O.J.Simpson case, and obtain a judgment which would be satisfied by book and movie profits.

Sometimes we get calls within a day or two of a loved one’s passing away by family members who wonder what they should do. The first thing that should be done is to handle the bereavement process. Spend time with family and friends and begin the grieving process before anything else.

There are many resources on line and in San Diego for information on the grieving process.
The National Hospice and Palliative Care Organization is the largest nonprofit organization representing hospice and palliative care programs. In San Diego we have the Elizabeth Hospice, San Diego Hospice, and Hospice by the Sea to name just a few. For people dealing with the death of a child there is the Empty Cradle and the Jenna Druck Foundation.

Coping with the loss of a loved one is a process. In addition to the grief and bereavement resources listed here, there are many grief support groups at local churches or through professional counselors. Most support groups also can recommend books and articles on the subject.

We always tell our clients and potential clients that the first thing to do is to begin the healing process. In most cases, contacting us in several weeks will be fine to determine what needs to be done as far as estate and trust issues are concerned. Sometimes there are immediate issues that have to be addressed and the experienced estate planning attorneys at Law Office of Scott C. Soady, A Professional Corporation would be happy to assist with those if necessary. Feel free to contact us by phone or email if you have questions.

Some people need extra time to file a personal tax return or an estate tax return. On your personal income taxes, you can apply for an automatic extension to file but it doesn't extend the time to pay. You will have to pay a .5% per month penalty for late payment.

With the payment of estate taxes, you can also apply to receive a 6 month extension. The extension provided for in IRS Form 4768 is automatic. You will automatically receive an extension to file for 6 months however be aware that an extension of time to file is not an extension of time to pay the taxes. An extension of time to pay is discretionary.

One executor and trustee of an estate found this out the hard way. In a court case entitled Baccei v. United States, a trustee of a revocable living trust hired an accountant to prepare the Federal estate tax return. The accountant filed Form 4768 requesting a 6 month extension of time to file the return. Part of the form contains a section for an explanation as to why the estate needs more time to pay the tax and the number of months requested, up to 12 months. The accountant did not fill out that part of the form. Within 6 months, the accountant filed the return and paid the estate tax. The IRS then assessed a late penalty on the estate tax paid which had been approximately $1 ½ million. The Trustee appealed.

The Court which heard the matter held that the estate had not requested an extension to pay, only to file, and therefore the late penalty was proper. The two extensions found in Form 4768 are separate extensions and have to be separately requested.

Filing and paying tax returns for an estate is one of the jobs of the executor of a will or the trustee of a trust. If you are the executor of an estate or the trustee of a trust, these are part of your fiduciary duties. Our office handles numerous probates and trust administrations in which we assist executors or trustees with these types of duties. If we can be of assistance, please contact us.

In California, the transfer of a car or other vehicle can be done without probate through the DMV. If you are an heir of someone who has died, you can transfer title even though there will be a probate or trust administration. You do have to wait at least 40 days from the date of death before you can transfer ownership.

The DMV form called "Affidavit for Transfer Without Probate" must be completed for all motor vehicles licensed in California. In additional to this form you will also need the Certificate of Title, an Odometer Disclosure Statement, a Statement of Facts, and pay the transfer fee.

DMV offices are located all over San Diego County, in the cities of Oceanside, El Cajon, Chula Vista, Poway, Escondido, Claremont and downtown.

Our experienced probate lawyers at Law Office of Scott C. Soady, A Professional Corporation can assist you with any other issues you have relating to probate in San Diego County.

Earlier this month we posted a blog about identity theft during the hollidays. Malls in North County, South Bay, Carlsbad, and Mission Valley are targets for pick pockets and thieves who look to steal purses. But did you know that even deceased persons can be victims of identity theft? The deceased are easy targets because sometimes it takes weeks or months and in some cases years for financial institutions to find out about a death. The identity of a deceased person can be stolen in a variety of ways. Some identity thieves watch the obituaries, look up death certificates, or obtain private information from health care providers, unknowing relatives, or internet genealogy web sites.

Back in 2006 in Kentucky a financial planner used the confidential data of 160 deceased persons to acquire 700 credit cards from financial institutions and scammed nearly $2 million over a three year period

Although the deceased person doesn’t have to be concerned with his or her credit rating, identity theft can cause emotional distress for the family. Identity Theft Resource Center has valuable information about how to protect yourself and your deceased loved one from identity theft. They also have an information sheet with steps to take to decrease the risk of identity theft such as notifying the credit bureaus to put a “deceased” notation in their file, obtaining a copy of the decedent’s credit report, and a list of agencies and companies to notify of the death. Sample letters can be found at the California Office of Privacy Protection.

You can also stop the junk mail by contacting the Direct Marketing Assn. There you can register to take the deceased’s name off mailing lists with their Deceased Do Not Contact List.

If your loved one had a will which needs to be probated or a trust which needs to be administered after death, Law Office of Scott C. Soady, A Professional Corporation handles many of the above steps as part of their representation. Contact us if we can help with trust administration or probate.

If you live in San Diego, there is a lot of free information available to you on a variety of legal issues. Here are some “clicks’ that may answer many questions you have:

1. Our website at Law Office of Scott C. Soady, A Professional Corporation has many articles in the area of estate planning and divorce. Our estate planning blog has current postings as well as archived postings going back to 2002.

2. The San Diego County Clerk/Recorder's office has information on its website about recording documents and you can also download samples of commonly used forms such as affidavits of death, grant deeds, quitclaim deeds, property tax exemption forms, and preliminary change of ownership forms. You can access information about your property tax bill or download an application to lower your propery taxes. You can also check the Grantor/Grantee index online for deeds and other recorded documents and order copies on line or pick them up at one of the offices in Kearney Mesa, San Marcos, downtown, Chula Vista, or El Cajon.

3. The California Courts Self-Help Center has information about how to find lawyer referral services, where all the courts are located and their calendars, and frequently asked questions about a variety of topics. There is information about small claims court, conservatorships, elder abuse, landlord/tenant issues, divorce, and traffic tickets. You can even download the Judicial Council legal forms and get information on how to fill them out.

4. At the California State Bar website you can find a lawyer, look up a specific lawyer’s disciplinary record, and get basic information about a number of legal topics. Consumer pamphlets are available on all sorts of topics such as estate planning, probate, small claims court, getting arrested, minors and the law, seniors and the law, and divorce and child custody.

If you need information on estate planning issues, remember Law Office of Scott C. Soady, A Professional Corporation offers a free in-house consultation. E mail us or call us with a question or to set an appointment.

Many San Diegans have timeshare properties out of state in Hawaii, Colorado, and Florida as well as right here in San Diego in the beachfront communities of Coronado, La Jolla, Mission Beach, Carlsbad, and Oceanside. If you plan to leave your timeshare properties to your heirs you need to understand several things.

There are two types of timeshare properties - deeded and non deeded. With the non deeded form of ownership you usually are buying a license to use the property or a lease or membership interest that allows use of the property for a number of years. You may or may not be able to pass this on to your heirs. With a deeded timeshare you actually have an ownership interest in the property and have a deed showing that interest.

If you have a revocable living trust, a timeshare, like any other piece of property, has to be transferred into your trust. If it is a deeded timeshare, this will be done with a trust transfer deed. Many trust administrations or trust distributions are delayed because individuals forget to transfer their timeshare properties into their trust.

With a will as your estate plan, your entire estate will have to go through the probate procedure with its accompanying time and expense. If the timeshare property is out of state, a second probate called an “ancillary probate” will have to be established, resulting in additional probate fees. Ownership of out of state property is a good reason to have a trust rather than a will.

With either a will or a trust, if you think your children will be fighting over the use of the timeshare, consider leaving it to only one beneficiary so that the timeshare does not have to be sold to distribute it.

If you have questions about your vacation properties and whether they are properly transferred into your revocable living trust, we can assist you at Law Office of Scott C. Soady, A Professional Corporation You can also call us or e mail about any other estate planning issue.

If you die in San Diego without a will or a trust, you are deemed to have died “intestate”. To die “intestate” means to die without a “testament” (a will) or a trust and your estate will have to go through the probate process where the Probate Court will determine where your estate will go. This can result in unintended results for some people and not what they would have wanted.

As an example, most people believe that if they are married and they die without a will or a trust, all their property will go to their surviving spouse. That is not the case in California. If you are married with children, your community property(essentially property acquired during the marriage) will go to your spouse, but only one-half of the separate property (property acquired before marriage or inherited during the marriage) will go to your spouse if there is one child of the marriage. If you have 2 or more children, your spouse will only receive one-third of the separate property. This can be an unintended result if the estate is small and the surviving spouse needs all the assets in the estate to live on. Furthermore, California inheritance laws only recognize relatives of the intestate decedent, so the Probate Court can never distribute any of the estate to charities or non relatives.

Here are 10 example of things you cannot do if you die intestate:

1. Leave any part of your estate to a friend.
2. Provide for a disabled child or other disabled beneficiary so as not to impact their public assistance.
3. Designate a guardian for your minor children.
4. Prevent a minor beneficiary from receiving all of his or her inheritance at age 18.
5. Leave any gifts to charity.
6. Disinherit someone who is your heir.
7. Designate who will receive your personal property such as jewelry, artwork, coins, etc.
8. Provide a life estate so that someone can live in your home after your death.
9. Leave any part of your estate to a non-adopted step-child or foster child.
10. Designate the ages and the terms under which your children or grandchildren will receive their inheritance.

To avoid unintended results upon your death and provide for your loved ones in any of the ways listed above, it is important to have a will or a trust. A will allows you to accomplish these objectives but a will has to go through the probate process which can be costly and time consuming. A living trust is a better way to specify who you want to inherit your estate without the time and expense of probate. The experienced estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation can assist you with implementing your wishes in the appropriate estate planning documents. Call us or e mail us for a complimentary in-house consultation.

Even when a person dies with a will or a trust, there can be disputes that result in a will contest or trust litigation. An individual may feel he or she should have been a beneficiary under a will or a trust. Sometimes a will has been changed and beneficiaries under the original will feel there has some impropriety surrounding the execution of the subsequent will. Sometimes beneficiaries may be dissatisfied with the accounting of the assets in the estate. When these types of issues occur, it may become necessary to seek the assistance of the court to resolve these issues. Common grounds for contesting a will are such things as claims of undue influence, lack of mental capacity, fraud, or an invalid codicil (amendment).

With a trust, individuals who are beneficiaries or think they should be a beneficiary may dispute the trust. Issues can arise such as the validity of the trust or amendments, the administration of the trust, or conduct of the trustee. Sometimes trustees have to be removed for misconduct or impropriety or it may be the case that beneficiaries have to initiate litigation to receive a fair distribution.

Handling a will or trust litigation matter requires special experience. If you have concerns about a will or a trust or believe you should have inherited from one, the experienced estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation can assist you. Call or e mail us for a complimentary, confidential in-house consultation.

In San Diego, many opposite sex and same sex couples have been married since the week of June 16, 2008. The California Supreme Court has issued a Writ of Mandamus to the California State Officials to not deny the issuance of marriage license based upon the sex of the betrothed. As such, there are now same sex spouses in California and these marriage are legal as of today and, as all know, there is a proposal for an initiative on the November, 2008 Ballot for same sex marriages to be unconstitutional. Whether the marriages are ultimately held valid or void, it is possible that a same sex spouse married in June of 2008 who passes away before the November elections, would have their estate treated the same as opposite sex spouses which would involve probate if there was not a revocable living trust.

In San Diego, there are two court houses for probate cases: San Diego and Vista. Our law office of Law Office of Scott C. Soady, A Professional Corporation, LLP would be pleased to offer a complimentary and confidential consultation to both same sex and opposite sex spouses for representation in probate or for the preparation of a revocable living trust. Please feel free to e mail or call us to set up an appointment.

In San Diego, there are two Probate Courts. One court is in San Diego and the other court is in Vista. The Judges follow the Probate Code and this requires, in some instances, a bond be placed with the Court. This is not an unusual procedure in Court however we find many of our client's are unfamiliar with the bonding process and are insulted by this requirement. The probate process, in and of itself, can be confusing enough.

The bond can be posted in cash with the Court. Most parties to a probate action, however, post the bond through a bonding agency. Bond Services of California is one bonding company and there are others. We do not endorse or recommend this company and list this for informational purposes only. Please make sure to check with the Better Business Bureau of San Diego for any companies in San Diego [including bonding companies] or in the city in which you need the services. Our firm of Law Office of Scott C. Soady, A Professional Corporation, LLP can assist with the liaison of a bond as needed. There are strict requirements for being bonded as well and this can be a complicated and confusing area.

Please feel free to e mail our firm or call for a complimentary and confidential consultation if you are seeking a probate attorney or have a question regarding the need for a bond in a probate case.

In San Diego, as in many of our previous postings, our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP has helped thousands of clients avoid probate fees and costs. The death of a loved one [and often a financial provider] can leave families financially devastated during this time. The probate fees in San Diego are 4% of the first $100,000, 3% of the second $100,000 and 2% of each next $100,000 in increments. In addition, probate can take more than one year for distribution and there is no privacy.

In fact, there are business' which advertise to beneficiaries [heirs] in probate cases and offer to advance them money pending the distribution by the Court. One company's website is included in this posting and our firm has no connection with this entity and does not endorse them nor their product. This is posted for the sole purpose of our firm using our education, training and experience to try and protect our client's rights and try and obtain their legal goals and to avoid having our client's in the financial position where they have no option but to pay for an advance on their own inheritance. Of course, once a probate is open, many persons have no choice given the financial position post death of a spouse or other financial provider such as a parent.

In our firm, our revocable living trust can avoid probate fees, costs and time thereby eliminating the need for advances which cost money to the beneficiaries. Please e mail us if you need a probate attorney would like to avoid probate with an estate plan prepared for you or for a complimentary and confidential consultation on any estate planning matter.

Before paying any company or hiring them, make sure to check whether they are members of the Better Business Bureau and what their record is with that company. The BBB is a legitimate method of ascertaining the credibility and reliability of any company and our firm has been members of the San Diego Better Business Bureau for many years and is proud of this and our record with them. On our website, we also display their logo and this is a link directly to our record with the BBB for any potential client to view.

San Diego has many divorced spouses. A recent case in the Court of Appeal published March 27, 2008 and modified on April 16, 2008, illustrates the need for an estate plan post divorce. The attorney fees were ordered to be paid by each party so both sides spent thousands of dollars in litigation when a proper estate plan would have avoided this costly and time consuming litigation. Do not let this happen to you or your beneficiaries. The investment in the cost of a revocable living trust alone would have saved thousands of dollars in legal fees and costs.

The case of Estate of McDonald involved a divorced man and woman. The parties had a legal judgment and this included that there was a termination of all marital property rights. The man died without an estate plan and the case went to Probate Court. The woman alleged that she was the rightful heir under the laws and the parents of the man alleged that they were the rightful heirs under the law. The Trial Court found that the woman was not the "surviving spouse" under the terms of the Probate Code. The Court of Appeals agreed.

At our firm of Law Office of Scott C. Soady, A Professional Corporation, LLP, we do not want your family to incur thousands in legal fees and costs when this is not necessary. Please e mail us if you have any questions or call for a complimentary and confidential consultation.

In San Diego, there are many probate cases. These are heard in the probate court houses located at the Madge Bradley Court House in San Diego and the North County Court House in Vista. Our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP can assist you with any probate matter in San Diego. You can feel free to e mail our firm or call.

An illustration of a famous probate case, which is not in San Diego, is that of Heath Ledger. An article in the Herald Sun explains that his fortune will go to his infant daughter as opined by two legal experts. This is a much more complicated case since Heath Ledger has substantial assets in Australia as well as the United States.

Please feel free to call us to represent you in your pending probate matter in San Diego, California.

San Diego, California has two probate courts. The first is located at the Madge Bradley Court House located on Fourth Avenue in San Diego. The second is located at the North County Court House located on Melrose Avenue in Vista. Judge Klein has the current assignment and, at the San Diego County Bar Association meeting in January of 2008, it was announced that there would be a change to Judge Brown.

It is very important to retain a law firm which has experience practicing before the Judge who will hear the case. This is important since the attorney needs to know the local rules of San Diego as well as the court room practice before each Judge. While all Judges follow the same laws, the procedures in the court rooms may be different. For example, some Judges allow attorneys into the "well" which is the area between counsel table and the "bench" where the Judge sits and some do not. Our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP can use our experience before the Probate Judges to assist with your legal matter. Please feel free to e mail us with any questions. Please feel free to visit our probate page on our website.

In Illinois, a Probate Judge is expected to hear testimony about the disappearance of Steve Fossett. As all recall, his body was never found. This also happens in San Diego as well and the procedure is to have the case probated. In the Fossett case, the wife of Steve Fossett is expected to testify that she has good reason to believe that her husband died when he was never found after flying in the Nevada desert. Many of the residents of San Diego habitually fly over the desert in Nevada and also go to Las Vegas. The issue of what happens when a body cannot be found is complex and complicated.

There is a legal rule in California that a person who has been missing for less than seven years is presumed to be alive unless evidence shows otherwise. There is a need in this case for a ruling of the husband being deceased for legal purposes of the wife and the estate. You can view the full article on Law Office of Scott C. Soady, A Professional Corporation, LLP website which has a daily newsletter for estate planning or go to the website for the Chicago Tribune which had details of the full article as our newsletter changes daily for the most up to the date news on estate planning. Always feel free to e mail us as well.

In San Diego, California, there are two probate courts which are located in downtown San Diego at the Madge Bradley Court House and in Vista at the North County Regional Center. The Business Office is open from 8:30am to 4:30pm at these two locations however you must check your local branch first as all are closed on court holidays and these may not be holidays on your schedule. It is important to understand that the probate process includes the Probate Examiner who reviews all documents for legal requirements and content before the relief is granted by the Court. You can make an appointment to meet with the probate examiner and this information can be obtained at the court house. It is important to consult with an experienced attorney first since this process can be very confusing and frustrating to the novice and, sometimes, even to the experienced.

The technicalities can become very important and, at times, there is a need for publication. This is an important aspect of the probate process since the publications must by by a list of the approved newspapers by the San Diego Superior Court. This list was last revised on October 10, 2007 and there are over 30 to choose from. As the costs for filing, service and other mandatory fees can be very expensive, it is important to make sure that the newspaper is approved for publication or you will have to republish and this will cost twice. This list is frequently revised so it needs to be checked prior to making any arrangements for publication. In addition, it is important to have the least expensive newspaper to save money since all are equally qualified. The most current list can be obtained free of charge by e mailing our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP at lawyer@help411.com.

In San Diego, California, there are exact rules for becoming a guardian which is an appointment by the Court. There are different standards depending on the legal relationship between the minor and the guardian. For example, if you are a relative of the minor then the investigation is completed by Family Court Services. Family Court Services is the mandatory mediation process used in San Diego, California and the mediators are licensed clinical social workers hired by the Court to assist in the agreements and/or recommendations regarding custody and placement of minors. Guardianships are only for minors and this is the age of 18 in California. If you are not the relative of the minor, then a contact with the San Diego Department of Health and Human Services will need to be contacted. Their phone number is 858-616-5907 however numbers often change. If you call and this is not the correct number, please feel free to call the office and we can assist in getting the correct number.

If the guardianship is for the estate only, you will need to contact the Probate Investigators in the Vista Court House at 760-806-6150 or the Probate Investigators downtown at 619-687-2000. This is a very complicated area of the law and the guardianship can be for the person, estate or the person and estate. An analysis really needs to be made at the beginning of the case for the best chance of success. Please visit our website at Law Office of Scott C. Soady, A Professional Corporation, LLP or e mail us for any questions you may have at lawyer@help411.com.