Take the time to make sure that your loved ones receive any money or assets you intend for them from your estate. We all pass on leaving loved ones behind. Protect your interest and theirs by making sure you have a valid California will and/or a valid California trust which will cause the assets of your estate to pass-on to those you care for.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices California Probate matters which includes California wills and California trusts. We represent clients in Sacramento, California and clients in Northern California with services they need and deserve in the planning of their estate. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Affordable rates and payment plans are also available. Call now 916-443-1267 for your free consultation.
Estate planning is the process of making a plan in advance and naming whom you want to control your estate and who is to receive the things you own after you die. Estate planning should be done to ensure that your wishes regarding your estate are carried out and to minimize any tax or court costs.
Estate planning often begins when you create a will. This allows you to control who is to benefit from your estate and what assets they are to receive. It gives you the power to determine who will receive money and the amount they are to receive. You can also designate a person to receive a personal memento, an entity to take possession of property which is will be presently held in another’s name, or conditions which must be met for a bequest is delivered.
Read more about California Wills by clicking here: California Will
Creating a trust is very beneficial to estate planning in that is not only allows you to control the distribution of your assets much in the same way as a will but, you gain the additional advantage of avoiding probate and fees associated with the probate process. The probate petition that is filed with the court for the deceased is avoided if the majority of that person’s estate is held in a trust. Real property held in trust will require a filing with the county recorder’s office where the property is located to remove the deceased person’s name from the title.
Read more about California Trusts by clicking here: California Trust
Read more about California Living Trusts by clicking here: California Living Trust
Read more about Trust Administration by clicking here: Trust Administration
Read more about Trust Contest by clicking here: Trust Contest
Read more about California Revocable Trusts by clicking here: Revocable Trust
Intestate succession is a legal procedure used by a probate court to decide who is entitled to share in a person’s estate when they have passed-away but did not leave a valid will or trust to distribute the assets of their estate. Under intestate succession, distributions are made considering those family members who are still living and their relation to the deceased person, the decedent.
- If the decedent leaves behind a only a spouse and no children, then the spouse will receive all of the decedent’s community property interest and all of the decedent’s separate property interest.
- If the decedent leaves behind a child or grandchild in addition to a spouse, the spouse receives all the decedent’s community property interest but only one-half of decedent’s separate property interest.
- If the decedent leaves behind a parent or sibling in addition to a spouse, the spouse receives all of the decedent’s community property interest but only one-half of decedent’s separate property interest.
- If the decedent leaves behind two or more children, two or more grandchildren, or any combination thereof, in addition to a spouse, the spouse receives all of the decedent’s community property interest but only one-third of the decedent’s separate property interest.
Read more about California Intestacy Distribution by clicking here: California Intestacy Distribution
Probate is the process used by a court to distribute the assets in the estate of a deceased individual. In the state of California, the court will probate the estate of anyone who passes-away unless the deceased individual created a trust. If the person dies without a will, or a trust, they are said to die intestate; if a person dies after having formed a will, but did not create a trust, they are said to die testate.
Read more about California Probate by clicking here: California Probate
In California, the probate courts have the responsibility to determine how an estate will be administered. Part of the administration process includes determining what assets belong to the deceased person’s estate and how those assets will be distributed. When an estate is probated, all the assets of the deceased person’s estate are distributed to beneficiaries after the estate makes payments for taxes, administration, and court fees.
To control who is to receive the assets of your estate when you die, you must have a valid will and/or a valid trust. To avoid probate, you only need to have a valid trust.
Read more about Probate Process by clicking here: Probate Process
Read more about California Probate Process by clicking here: California Probate Process
A surviving spouse who gains an entire interest in real property may file a spousal petition to cause a transfer of the title to that property into their name alone. The petition must assert and prove that the surviving spouse has gained the entire ownership interest. Proof can be any of the following:
- A valid will, executed by the deceased spouse, leaving their entire interest to the property to the surviving spouse;
- Title to the property held in joint tenancy with the right of survivorship; or,
- Establishing the property as community property with a right of survivorship.
Read more about Avoid Probate by clicking here: Avoid Probate
Read more about Avoiding Probate by clicking here: Avoiding Probate
Read more about Probate Tax Filing by clicking here: Probate Tax Filing
We often we hear of people who have passed-on leaving large sums of money or valuable assets to a caregiver who was attending to seriously- ill individual. These gifts to caregivers has been hashed-out in court many times in suits brought by disgruntled family members who received little or nothing from their relative’s estate. In response to the many cases that were filed, the California legislature passed into law a requirement that there be completed a “Certificate of Review” when a dying person leaves a substantial gift to a person who is not related. The Certificate of review is an interview done by an attorney who is not involved with the deceased person’s estate and who has not represented an party involved in a suit pertaining to the estate. This attorney certifies that the dying person is aware of what they are doing, is knowledgeable about their estate, and realizes that they are making a gift to a non-relative which will affect distributions to family members.
This “caregiver’s bequest law has recently changed creating new issues which the courts have yet to address. Of particular importance is the effect this new law will have on trusts. Under the old law, the caregiver’s bequest required a Certificate of Review. However, now that there is a new law, it is speculated that any bequest made in a revocable trust, when the old law was in effect, will now require a new Certificate of Review.
Your estate planning should include addressing any gifts you intend to give to others.
Statutory Probate Fees
Statutory fees are established by the California legislature and are paid to the court, the trustee, and administrators by the decedent’s estate as compensation for handling the probate of the decedent’s estate. These fees are deducted from the estate before any distributions are made to beneficiaries. Both the personal representative (administrator) and the attorney who handles the estate are entitled to a fee which is based on the gross value of the estate. Each one is entitled to the following amounts:
- 4% on the first $100,000
- 3% on the next $100,000
- 2% percent on the next $800,000
- 1% on the next $9,000,000
- ½ of 1% on the next$15,000,000
- A reasonable amount determined by a court for all amounts above $25,000,000.
- Additional fees for extraordinary services.
There is also a court probate referee who is also compensated with a commission of one-tenth of 1% of the total value of the appraised assets. The probate referee will receive a minimum fee of $75 and a maximum fee of $10,000. This referee may petition the court for a higher fees if the reasonable value of the services they provide is more.
The final result is, these are fees deducted from a deceased person’s estate before any family member or beneficiary receives their share. This is money that your spouse or children could have received and money that they will not receive because you did not create a trust. And you thought bank fees were outrageous or that credit card interest rates were high? Do the math on the estimated value of your estate or call our office and we will do it for you.
Remember, all of these expenses can be avoided by taking the time to contact our office and having us create for you a valid trust. Call us today and we will begin creating a trust which will protect all of your assets from probate and these fees.
A conservatorship is a court action which appoints one person to handle the personal and/or financial matters of another person who is no longer capable of taking care of themselves. The person who is appointed is called the “conservator,” while the individual who is no longer capable of caring for themselves is called the “conservatee.” There are two types of conservatorships; a conservatorship of the person and a conservatorship of the estate. Often one conservator will fill both roles.
Conservatorship of a Person
The conservator is given the authority and responsibility to makes sure that the conservatee receives food, clothing, shelter, and other benefits or enjoyments such as healthcare or social contact.
Conservatorship of an Estate
The conservator is given the authority and responsibility of handling the finances of the conservatee’s estate. The conservator will use the conservatee’s money and other assets for the support, education, and care of the conservatee and any conservatee dependents. A court may order the conservator to handle not only the conservatee’s personal finances but any business matters they have as well.
Documents are filed with the Probate Court which sends copies to the proposed conservatee and their close relatives. The court will also assign the matter to an investigator who will contact the proposed conservatee and others who may know something about the situation.
After the proposed conservatee is interviewed and a preliminary decision is made that the individual may need care, a court date is set to hear the matter. At the hearing, a judge will hear evidence regarding conservatorship and will question the conservatee. Others, such as family members, may attend and object to the proceeding or propose a different conservator. At the conclusion of the hearing, the judge will decide whether a conservator will be appointed and, if so, who that person will be.
Within 90 days of the date the Judge signs the Order Appointing Probate Conservator, the conservator must prepare an Inventory and Appraisal form file a report with the Court listing the conservatee’s assets and debts. If there are assets other than cash, the conservator must forward the Inventory and Appraisal to the court-appointed probate referee. The probate referee will appraise the non-cash items, complete the Inventory and Appraisal by inserting the value of those items, and return it to the conservator, who must file it with the Court. The estate is charged a fee for the appraisal, which is generally 1/10th of 1% of the total value of the conservatee’s estate, with a maximum fee of $10,000. The probate referee may also be able to recover expenses, such as mileage, in addition.
Once a conservatorship is in place, the Court conducts periodic investigations to confirm that a conservatorship is still needed and that the conservatee is being treated appropriately.
Conservator’s Duties and Responsibilities
If the conservator is handling the conservatee’s finances, the conservator must post a bond and must provide detailed accounts periodically to the Court that list all income and expenditures.
The amount of the bond depends on the assets that the conservatee has and their annual income, as well as whether a professional bonding company (versus family members or friends) is providing the bond.
The conservator is allowed to hire others to help them with the conservatorship as long as any expenses are reasonable in comparison with the size of the conservatee’s estate.
Often the conservator must prepare periodic status reports which are filed with the court stating how the conservatee is faring and what duties the conservator is or has preformed.
Usually the cost of the conservatorship comes out of the conservatee’s income or other assets. Generally, the conservator is entitled to reimbursement for reasonable expenses incurred on behalf of the conservatee, including expenses to establish the conservatorship and sometimes money spent supporting the conservatee prior to the conservatorship.
With the exception of Court filing fees and premiums on the bond, the conservator must obtain Court approval before receiving reimbursements from the conservatee’s estate.
A detailed written record must be submitted to the court should a conservator want to receive compensation for the time they spend handling the conservatorship. A court will usually allow a family member to recovery only for time spent on managing the finances of the estate, and not for any time spent acting as a family member or for acting as a conservator of the person. Some courts have schedules that set out the compensation that a conservator may receive for their time, often a percentage of the conservatee’s estate.
The conservator may petition the Court for compensation for time only if 90 days has passed since the Letters of Conservatorship were issued and they have filed the Inventory and Appraisal form. The courts may not allow compensation for time if little time has been spent on financial matters or if the conservator has not followed court procedures, including filing an accounting on time.
Power of Attorney
The process of obtaining and maintaining a conservatorship is expensive and time-consuming. As an alternative to a conservatorship, the proposed conservatee can designate another person to handle their affairs by signing a power of attorney. There are two types of powers of attorney:
- Durable Power of Attorney for Finances: The proposed conservatee, grantor, designates an agent to handle the grantor’s financial affairs should the grantor becomes incapacitated.
- Advance Health Care Directive: The grantor designated an agent to make health-care decisions if the grantor is incapacitated.
As can be seen, estate planning can involve a number of issues which should be addressed while you have the time and the ability to make decisions.
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