Petitions are typically filed in Probate Court to obtain a Conservatorship, Guardianship, open a Probate or handling a Trust matter. Contests are also filed in Probate Court involving Wills and Trusts.  Routine petitions are also filed to put property back into a Trust, to reform a Trust or otherwise obtain instructions regarding administering a Trust.

What does this mean?

Well, obviously, the delays in getting a petition heard and otherwise dealt with in Probate Court are going to take longer meaning more costs in terms of money and emotions.

How can you avoid this?

Well, it is about making sure you have taken responsibility to ensure that your affairs are in order. If you become incapacitated or die — do you have all of the documents in place, reviewed, updated and all of your assets transferred into your Trust or otherwise named with payable on death beneficiaries?

Make this happen.

Review your documents, research what needs to be done. Hire an attorney to draft the legal documents, assist you with putting your assets into your Trust or otherwise ensuring that they are properly handled. Talk to your CPA regarding potential tax issues. Discuss with your financial advisor about insurance products and other related issues. You need to cover all aspects of your life: legal, medical and financial come to mind. Do it while you are young so there are no grounds for challenge or a contest. Keep updating it as you get older and your life changes around you.

Make it a goal to keep your affairs out of the Courts.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

South Butt’s Answer to North Face’s  Complaint.

California’s Proposition 193 offers the same benefit, but only from transfers from grandparents to grandchildren in very specific circumstances.

In other words, transfers of real property between parents and children (read the website for more information as to what this means) and transfers of real property from grandparents to grandchildren (with many many exceptions and qualifications) may mean that the property taxes for that property will not go up.

Why?

Because California voters passed Proposition 58 and Proposition 193 in years past allowing for these kinds of transfers to pass without property tax reassessment. It is a nice benefit.

So when you record the new deed, probate final orders, the trust transfer deed or other document involving real property belonging to a parent, grandparent, child or grandchild and the transfer is to one of the qualified persons, review the appropriate county website to see if you also need to file the claim form for reassessment exclusion as well.

For Los Angeles County, click here for their website information.

For Orange County, click here for their website information.

For general information, you can review the website page from the California State Board of Equalization.

The tour was given by a nurse who has been with the hospital for over 40 years. She is now the Chief Operating Officer. To say the least, the behind-the-scenes tour was amazing. While we toured the entire hospital, patient rooms, emergency facilities and everywhere in between, what was amazing was this:

1.  Every facet of the hospital has been designed with the patient in mind. There is a small section in emergency that is away from the action, is a darker room and is used for those suffering with migraines or other ailments where a quiet, dark room is crucial. Chairs all through out the hospital vary in size including a larger seat size to accommodate family and loved ones who might be larger in size so they can be comfortable too. A small break room was taken away from emergency personnel like firefighters and police officers to provide yet another room for more patient beds. In ICU, the rooms have glass walls to allow more light all throughout the wing so the ICU patients can get a better sense of day and night for their own orientation. There is a shift to have more private rooms with bed each so patients can recover solo without being disturbed by another patient who may have different needs. The waiting areas have been re-done to welcome families. Overall, it was amazing to hear all of the nuances and changes made to accommodate the patient.

2. The technology that has been embraced by the hospital is phenomenal. On order is a portable computer that can show x-ray readings so the digital x-ray can go to the patient instead of the patient hobbling to the x-ray reading area. There is a state of the art CAT scan equipment that can show images faster and in more detail including an awesome 4D version.

3. The emergency room was beyond impressive. Their goal is that every patient is seen within 5 minutes of entering the emergency room doors and there is no waiting. At 11:30 am on a Thursday, the emergency room waiting area had one body. During our tour, one man rushed in asking for a wheelchair. My tour guide walked away from us, grabbed a wheelchair and took the next 5 minutes to help this gentleman with the incoming patient. Absolutely amazing. There’s even a little gizmo in the wall of the emergency room to submit a lab sample inside a tube and have it shuttle over to the lab across the way for a faster lab analysis.

I am honored to be a part of this community and to have a chance to tour such a wonderful facility. I urge all of you to consider visiting your local hospitals in good times and ask how you can volunteer or help. It will make you feel good and serve your community as well.

A brief summary: This was a project by the American Bar Association Commission on Law and Aging commissioned by the National Hospice and Palliative Care Organization for both the seriously ill individual and those caring for someone who is seriously ill.

Hope you find this link useful.

With the New Year comes new resolutions… this blog is my resolution for 2010 and beyond. It’s time to make posting here a regular habit to educate readers and others seeking information about estate planning, probate, trust administration and related matters. Please also expect to find interesting posts about other topics as they come to mind and would be of interest to the blog in general.

So expect more to come!

On to other things, I was quoted in an ABA Journal article on Facebook — it’s a fun article. To read it, click here.

Best wishes to a great new decade to everyone!

1. Does a notification need to go out? California Probate Code Section 16061.7 requires that a notification be served when a revocable trust becomes irrevocable, upon change of trustee or other event stated in the Code. This notification is always required when a revocable living trust is involved and one of the settlors (or creators of the trust) has died.

2. Does a Certification of Trust need to be prepared? If there are assets out there other than real estate, will the successor trustee need to marshal those assets? Get them out of the name of the trustee who has died and into the name of the surviving co-trustee who will now be the sole trustee or will a new trustee be stepping up to the role? If so, a Certification of Trust pursuant to California Probate Code Section 18100.5 may be needed to present to others to retitle assets properly.

3. Does an Affidavit of Death of [Co-]Trustee need to be prepared? Where the revocable living trust holds title to real estate, the property should have been transferred to the trustees of the revocable living trust when the trust was created. The trustees at that time was likely to be the settlors (or creators of the trust) and if one or both of the settlors has died — an Affidavit of Death should be prepare and recorded against the real estate to clear title so that everyone is on notice that the trustee(s) has died and that the trustee(s) are either the surviving co-trustee now serving as sole trustee or successor trustee(s) are now in holding title of the real estate.

These three questions are my first threshold questions when assisting clients in the beginning stages of trust administration where a loved one has died and there is a revocable living trust. It is important to seek legal advice and legal representation regarding trust administration if you are not sure of your role as a surviving co-trustee, successor trustee or even a beneficiary when someone with a revocable living trust has died.

Of course, there are other questions that may also immediately come to mind like, but that’s not the topic of this post:

4. Do we have a high net worth trust and/or estate where federal estate taxes may be an issue? [And would a state inheritance tax also be an issue?]

5. Do we have a trust that requires an allocation or a split into subtrusts following the death of one spouse?

6. Do we need to obtain an Federal EIN for tax purposes?

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

A Living Trust is a must for California residents for three reasons, which I will explain below. Don’t believe this article written by a Maryland attorney — it is about Maryland law — California law is drastically different. Trusts are beneficial in this Golden state.
First, probate is very costly in California. The filing fees alone to open an estate in Los Angeles or Orange county is $355! This does not include the cost of publication required to advertise that probate is being opened, which runs in the $500 range. It does not include the cost of the inventory appraisals required in the estate by a court appointed probate referee, which will run in the $400 range for a home appraised at $400,000. Attorney fees in probate are set by statute and can run over $10,000 for a modest estate of one home and some cash. At the outset, fees and costs alone in a probate estate in California are outrageous. Probate can be avoided by having your real property and other assets vested in a Living Trust.

Second, a Living Trust can protect you while you are alive. It can avoid a potential conservatorship or guardian over you if you are no longer doing well as an adult. Conservatorship is another legal term meaning guardian of the adult. If you have  Living Trust along with a power of attorney and advance health care directive, your family or other loved ones will be able to manage all aspects of your financial and medical affairs without court intervention if there are no other problems. Problems that could crop up would be disagreement among your loved ones or resistance by you if you were diagnosed with a form of dementia that caused you to resist help by your loved ones. In those kinds of situations, legal documents may not be enough without a court ordered Conservatorship.

Third, if you have minor children — you will definitely want a Living Trust to catch the proceeds from any life insurance policy on your life, for all real property holdings and other assets so a guardianship of the estate is not needed for any minor child of yours. Guardianship of the estate are costly with filing fees and attorney fees. A Living Trust can avoid this — you can select your successor trustee to manage your child’s money in the event of your untimely death. You can control how your child receives their inheritance. You can control when they get the remainder of their inheritance. Instead of at age 18, you can say that they will get the remainining inheritance at age 25 or later.

Of course, each person’s situation is unique, but the costs of a Living Trust (in the $500 to $5,000 range with a reasonable cost coming in around the $1500 to $1800 range) in the above circumstances will definitely offer a benefit for California residents.

My motto: If you live in California and plan to die here, you need an estate plan designed for your circumstances according to California law. Don’t read an article from an attorney who practices law in another state and decide that his advice will be applicable to your situation. Seek advice from the attorney in the state in which you reside and plan to die.

Do you already have your primary residence in your trust?

Are you about to acquire a replacement home or additional real estate?

If so, transferring your new acquisition to your existing revocable living trust is easy. Of course, while you may want to consult with your attorney before doing so especially if you have a larger estate for tax implications — it is wise to have all of your real property (meaning real estate) holdings vested in your living trust especially in California to avoid probate.

Your revocable living trust has a title, you are likely the current trustee and it also has a date it was created. Using this information, you can instruct escrow to title your new acquisition into your revocable living trust at the minute the purchase is consummated and recorded by escrow.  No extra steps are required.

Tell your real estate agent or escrow officer to title your purchase in your revocable living trust using this formula:

[NAME OF TRUSTEE(S)] Trustee of the [NAME OF TRUST] dated [DATE TRUST WAS EXECUTED].

Here are some examples:

John Smith, Trustee of the Smith Family Trust dated January 1, 2009

John Smith and Jane Smith, Trustees of the Smith Family Trust dated January 1, 2009

Patricia Snow and Patrick Rain, Trustees of the Snow-Rain Revocable Family Trust dated December 1, 2007

Again, when in doubt, please consult with your attorney should you have questions about your particular real estate transaction, titling and your revocable living trust as each situation is unique.

At the community college level, many students sign up for these kinds of courses and this course is not an exception, which 32 enrolled students.

I have many students who want to become paralegals, some who are what I call “13th graders,” some who are already legal assistants and want to obtain their certification among others.

I have one student who is in his 50s and is taking the class as a master class concept. He wants to learn about estate planning for his own personal use and information for his own life and family. So he attacks the course subject with much more vigor that most of the other students. A joy to have in class really. And a challenge as well. Keeps me on my toes. But over the course of the semester, we are more than half way through, I enjoyed getting to know him, learn about his life, discuss concepts related to estate planning and review his completed assignments.

The last assignment is a portfolio of sorts. Each student was given the same fact patterns, a memo to the file if you will, about a (pseudo) client that came in to see me. In essence, the students were asked as their final project to prepare a will, durable power of attorney and advance health care directive for an older client who did not own their home. The power of attorney was to be effective upon incapacity.

So my master class student bought Quicken WillMaker Plus 2.10 last weekend and began work on the portfolio in earnest.

He checked off the boxes, went through the software program, checked the online help references and noted a few things.

While I had instructed that the durable power of attorney be effective upon incapacity and WillMaker had a checkbox for this option — he noted that the final durable power of attorney was effective immediately. Had he not reviewed the document he generated, he would have been in for a very rude surprise later had he drafted this kind of power of attorney for himself. He then played around with the program a bit more and wanted to check out the trust module. He then realized that the package, marked all new and updated from before, did not even include a component to draft a living trust! He was shocked. His words to me last night were, “And it was version 2.10 for crying out loud!”

I was amazed actually. I haven’t used this product, but many do. I figured it had to have been a reasonable competitor to my services. An acceptable do-it-yourself option of sorts.

But it isn’t. There is no substitute for engaging in professional assistance to do your estate plan.  None at all.