Monday, June 25, 2012
When a person dies, ownership of theproperty, assets and personal effects must be passed on or legally transferred to the beneficiaries or heirs, listed in the Will. If there is no Will, the individuals receiving assets are designated by law. "Probate" is the legal name given to this process.
First, the Will must be verified as the valid, final dispositive statement of the decedent (the official record of the deceased person's final wishes). The Will generally names the person or institution appointed to administer (manage) the probate estate process. When there is no valid Will, State law will dictate as to who receives the assets of the deceased.
Probate is the legal process by which a court-appointed Executor or Administrator takes over the deceased affairs and property. In the case where there is no Will, the Administrator then identifies and locates the heirs. The Executor or Administrator also accounts for all the deceased’s assets and properties. He or she oversees payments of the deceased’s debts, including unpaid taxes. The Executor or Administrator may have to sell off some of the deceased’s assets and properties in order to pay bills, taxes and expenses of the estate. Then, if there are properties and assets remaining these can be distributed to the approved heirs and beneficiaries.
The probate process can be as short as six months and as long as two to four years depending on State laws regarding creditors’ claims, property to be sold, tax liabilities, disputes among heirs, and backlog in the courts.
The Executor or Administrator is accountable to the Will beneficiaries or the heirs if there is no Will; thus, he must perform his duties in a fair and legal manner. If any doubts exist as to the competency of the personal representative, the probate court may intervene and oversee the performance of the Executor or Administrator. The personal representative, for his efforts, is entitled to a “commission” for these services as set by statute.
Probate law may allow for partial distribution prior to the final distribution and liquidation of the estate. During the period of administration; some property and assets may be distributed rather than sold during this time. Inheritance tax laws will usually require the personal representative to handle the filing and making of tax payments. Thus, it is very critical to choose the right Executor when executing a Will.
The job of estate administration and accounting must be done regardless of whether an estate goes through the probate process or even if probate is avoided outright. Estate planning lawyers have advocated the use of probate avoidance techniques (which includes the use of revocable Living Trusts) in states where the probate process was seen as being time-consuming and expensive. Several U.S. States have adopted the Uniform Probate Code or simplified their probate processes over the years.
Since the probate process in California can be long and expensive it is best to avoid it. Often times if there is no Will and the estate must go through this process, the estate often pays much higher taxes and of course legal fees. If you have any assets it is best to hire an Estate Planning attorney to handle your estate planning. If a family member has passed away who had no Will, unfortunately at this point it is too late to plan, so it is best to hire a Probate lawyer to help you through this long and arduous process.
Monday, June 11, 2012
living trust is a legal, written document that acts as a substitute for a Last Will and Testament. More complex than a will, it should be prepared with the help of qualified California living trust attorney. When you have your estate plan prepared by an attorney, you obtain more than just a legal document, you receive legal advice from your own, trusted attorney.
Assets put into the living trust will avoid probate when you (and your spouse) are deceased, saving your heirs thousands of dollars and up to two years (or more) in court. A typical living trust in California can save your loved ones as much as 6%-8% of the value of the estate or more. If your estate is worth $500,000, the probate costs and fees are usually between $12,000 and $15,000-- or more.
In a living trust, you are the Settlor, also known as the Trustor. The Trustor creates the living trust by signing the document. Only the Trustor may amend the living trust, or revoke it. You will also name yourself as Trustee. The Trustee of a living trust is the person who handles the assets in the trust. Once you put assets into the name of the living trust in a process called funding, you will manage them for your own use as you please.
You will also name a Successor Trustee, who will take over for you when you are deceased or incapacitated. The Trustee will pass your assets to your beneficiaries when you die, under the terms and restrictions written in the document. Your heirs inherit under the terms you stipulate, and the assets are managed by the Successor Trustee pursuant to your trust.
When you have a Living Trust, you should also have a Durable Power of Attorney for Property Management, which will name someone to handle your assets and daily financial affairs in case you are incapacitated. You should also have an Advance Health Care Directive or Living Will and Durable Power of Attorney for Health Care, which allows someone you designateto make health care decisions for you when you can’t and, if necessary, to “pull the plug”.
As mentioned above, living trust can result in significant tax savings if they are structured in the right way. There are methods to reduce estate and even income taxes with use of living trusts. Unlike in the probate procedure (where your testament will become public) with a living trust your estate planning remains private even when you pass away.) There is no need to disclose any of your last wishes if you have used a living trust. Finally someone you trust will manage your living trust, because you designate the trustee yourself.
If you have questions you can't resolve on your own, if your estate will face a significant tax burden, or if you think your spouse or children will challenge your trust, then you should consult your living trust lawyer in California.