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Probate, Estate Planning, Wills & Trust

PROBATE ADMINISTRATION AND ESTATE PLANNING

Whether you are trying plan the distribution of your assets after death or administer an estate in probate the The Law Offices of Jeffrey D. Gold, A Professional Law Corporation is the right law firm for this. Call us at TEL: 562-348-9702 or contact us online.

For a free initial consultation with The Law Offices of Jeffrey D. Gold, A Professional Law Corporation, call us at Call us TEL: 562-348-9702 or contact us online.

Probate Administration and Estate Planning both involve what happens to assets upon someone’s death. It is always stressful when someone close to you dies. The Law Offices of Jeffrey D. Gold, A professional Law Corporation provides a full range of estate planning and probate services to help your family with all of your needs. You may need the knowledge and expertise of a qualified probate attorney for many reasons. You may wish to draft or change your will, establish a trust, right a wrong, honor an agreement, obtain compensation or defend an action within a probate or estate administration case, or aggressively protect your rights in opposing such claims. Those are but a few instances of probate law. For your probate or estate planning issues or questions The Law Offices of Jeffrey D. Gold, A Professional Law Corporation is the right law firm for this. Call us at TEL: 562-348-9702 or contact us online.

Our Probate Administration and Estate Planning services include:

  • Estate Administration and Probate Court
  • Contested Will Litigation
  • Wills and Trusts
  • Power of attorney, financial and medical
  • Living Wills/Advanced Directives

Navigating through the complex laws and procedures of what happens to a deceased person’s assets upon their death is difficult at best. Whether you are interested in planning your estate so that your assets are distributed as you wish upon your death, or dealing with another’s the distribution of assets after their death, the Law Offices of Jeffrey D. Gold, A Professional Law Corporation can assist you in assuring the distribution is according to your wishes. Call us at TEL: 562-348-9702 or by e-mail to schedule a free initial consultation. We will discuss your options and give you a clear explanation of our services.

Estate Administration and Probate Court

When someone passes away, his or her estate often goes through a court-managed process called probate or estate administration. In this process, the assets of the deceased are managed and distributed. Probate is the process through which a court oversees the collection of assets, payment of debts and transfer of title from the name of a decedent to the names of the beneficiaries.

Non-Probate Assets

Certain types of assets are what is called “non-probate assets” and do not go through probate unless a special exception exists. These include:

  • Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts (so long as there are designated beneficiaries).
  • Life insurance policies with a proper beneficiary.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.

If the assets of the deceased were held in a well-drafted and properly funded living trust, then a court-managed administration is probably not necessary. In any case, though the successor trustee needs to administer the distribution of the deceased’s assets. The time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

The Probate Administration and Estate Planning process for each estate is unique, but usually involves the following steps:

  • Filing of a petition with the proper probate court.
  • Notice to heirs under the will or to statutory heirs (if no will exists).
  • Petition to appoint Executor (in the case of a will) or Administrator for the estate.
  • Inventory and appraisal of estate assets by Executor/Administrator.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets.
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.

Probate Administration with a Will

Typically, if a will is involved, a probate court will determine whether it is valid and should be executed. If the will is found to be valid, the court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner.

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.

The cost and duration of probate can vary substantially depending on a number of factors such as (1) the existence of a Will, (2) the number of creditors; (3) the quality of the legal documents, (4) the location of real property owned by the estate, (5) the value of assets, (6) whether there are disputes among family members; and (7) how organized the personal representative is. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.

Probate fees for “ordinary” services are set by California statute as a percentage of the gross value of all the assets of the estate:

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of amounts over $1 million.

There is an additional fee for very large estates, and in addition, the attorney and the personal representative may be entitled to additional compensation for extraordinary services.

Probate Administration Without a Will

The court also oversees the distribution of assets if the testator, or deceased person, died intestate, without a valid will.

In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect. Typically, inheritance is granted to family members according to a specific order. Once the decedent’s debts have been paid from the estate, the remaining assets are distributed among the testator’s spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren. Family members who are half-blood relatives are generally considered as if they were full blood.

Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one’s rights. Whether you are an executor, trustee, beneficiary or someone improperly left out of a will, contact our estate litigation attorneys to discuss your options.

Will Contests

A properly drafted will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the Testator. Unfortunately, estate planning documents, whether wills or trusts, do not always clearly reflect the intentions of the testator. Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a will.

A protesting party may only contest a will if he or she falls within one of two categories. First, those mentioned in the will, known as the will’s beneficiaries, may formally challenge it. Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will, or is expressly disinherited, he or she may seek to contest. If one is not named as a beneficiary in the will and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge.

When someone with standing objects to a will or a trust, the estate might have to be litigated. This is sometimes referred to as a “will contest.”

In order to successfully contest a will, the protesting party must prove that the will is invalid. A will may not be admitted, under several scenarios:

Undue influence – If the testator altered his or her will under the threat of force or other persuasion, it is said that he or she was under undue influence.

Mental incapacity – Similarly, if the testator is shown to have been in an Incapacitated or otherwise impaired mental state at the time the will was executed, it may be considered void.

Will does not follow procedure – A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.

The will was revoked – If the will was revoked after it was signed, it will also be considered void. A subsequent will, marriage, or legal action may also revoke a will.

Fraud – Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party.

Will Contests are complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures. To prevail in court the services of an experienced trial attorney are critical. Aggressively pursued courtroom strategy is critical, an attorney well-seasoned in the rules of evidence, and appellate law are vital. Not all attorneys have the extensive trial experience of Jeffrey D. Gold, who has represented thousands of clients, conducted hundreds of trials and practiced courtroom law for decades. Jeffrey D. Gold, can provide you with the expertise only a seasoned trial lawyer can. Call The Law Offices of Jeffrey D. Gold, A Professional Law Corporation for a free consultation. at TEL: 562-348-9702 or contact us online.

ESTATE PLANNING AND DRAFTING OF DOCUMENTS

Wills

Most people know a little about wills. They are written to ensure that one’s hard earned assets go to the right beneficiaries when an individual passes away.

Here are some of the things a will can do:

  • List who gets what. The most common purpose for a will is to name which individual, or group of individuals, will receive particular property belonging to a person when he or she passes away.
  • Name guardians for children. Typically, a will is the document that states who should raise a person’s children if something happens to the parent. The will also usually contains at least one alternate in the event the first choice cannot serve.
  • Establish trusts. In many cases, a person may not want a child or loved one to receive all of the property that they are inheriting at once. Or a person may want the beneficiary to be able to use the property for a while, and then for it to pass on to someone else. In that situation, an individual may choose to use a trust. A trust holds property on someone else’s behalf. In wills, trusts are commonly established for minor children, so that someone else can manage the children’s money until they reach a certain age when their parents believe they will be able to manage it. Trusts are also commonly used in second marriage situations – a person may want to allow a spouse to have access to certain property while the spouse is living, but for that property to ultimately pass to the decedent’s children.
  • List funeral wishes. Although this is also done in other documents too, a will commonly states whether an individual wishes to be buried or cremated, and where the body should be buried or the ashes should be spread. Sometimes, wills contain more detailed information about funeral wishes…
  • Tax planning. Wills can be great tools for tax planning in order to avoid federal or state estate or inheritance taxes. This can sometimes be accomplished by setting up various trusts.
  • Naming executors and trustees. A will usually states who will be the executor of an estate, which is the person who will carry out a deceased individual’s wishes listed in the will. Wills can also name the trustee of any trusts established in a will, which is the person who will be in charge of carrying out the instructions of the trusts.

While wills can serve as powerful estate planning tools, they are only effective if they are properly drafted to suit the needs of each individual. An estate planning attorney can do that.

Trusts

Trusts can be invaluable tools in the estate plans of millions of individuals.

Trusts are simply an arrangement where one party holds property on behalf of another party. In an estate planning context, trusts are created by the person doing the estate planning (the settlor), who authorizes another person (the trustee) to manage the assets for the benefit of a third party (the beneficiaries). There are many reasons for establishing trusts including tax minimization or providing for the needs of underage beneficiaries.

Some types of trusts that may be useful in estate planning are:

  • Trusts for minors. Many people leave money to their children or their grandchildren in a trust as part of a comprehensive estate plan. This is typically done to ensure the money is there for the children’s benefit while they are younger-for support, education, medical expenses, etc.
  • Special needs trusts. Special needs trusts are tools that enable a person to leave property to an individual with special needs. Many individuals with special needs receive government benefits. If they were to suddenly inherit money, they would be disqualified in most cases from those benefits until the inheritance was spent. Special needs trusts protect those individuals’ government benefits while allowing them to have money for any extras they may need.
  • Marital trusts. Married couples sometimes include trusts in their wills, or separately, for the benefit of their spouse, typically for two reasons: (1) taxes, and (2) property protection. Marital trusts can also protect property from a spouse to ensure that it ultimately goes where it needs to go. For example, a husband with grown children from a previous marriage may decide to let his wife use his property after he passes, but puts it into a trust so that after she passes away it goes to his children.
  • Revocable living trusts. Revocable living trusts are documents completely separate from wills although they often work hand in hand with wills to carry out the decedent’s wishes. Revocable living trusts are primarily used to avoid probate in states where probate is particularly cumbersome, or in a few other instances, such as when a person owns real estate in multiple states.
  • Irrevocable life insurance trusts. Irrevocable life insurance trusts (or ILIT’s) can be used in order to move a person’s life insurance proceeds outside his or her estate for estate tax purposes.
  • Spendthrift trusts. Spendthrift trusts are generally established to protect the beneficiaries’ assets from both themselves and creditors. These trusts usually have an independent trustee, which has complete discretion over the distribution of assets of the trust.

There are many different types of trusts, each of which can be customized to serve a valuable purpose in accomplishing the wishes of those making gifts or planning an estate. An experienced estate planning attorney can help you assess your finances and goals to determine the best vehicles to preserve your wealth and your legacy.

Durable Power of Attorney

A Durable Power of Attorney is a document that empowers another individual to carry on your financial affairs in the event you become disabled or incapacitated. Without a Durable Power of Attorney, it may be necessary for one of your loved ones to petition a court to be appointed guardian or conservator in order to make decisions for you when you are incapacitated. This guardianship process is time consuming, expensive, often costing thousands of dollars and it can be emotionally draining for your family.

There are generally two types of durable powers of attorney:

  1. A present Durable Power of Attorney in which the power is immediately transferred to your attorney in fact;
  2. A springing or future Durable Power of Attorney that only comes into effect upon your subsequent disability as determined by your doctor.
    When you appoint another individual to make financial decisions on your behalf, that individual is called an agent or attorney in fact. Most people choose their spouse or domestic partner, a trusted family member, or friend.

Durable Power of Attorney for Health Care

The law allows you to appoint someone to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a “Durable Power of Attorney for Health Care” or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

Living Will/Advance Directives

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

Whatever service you may need in the Probate or Estate Law areas the Law Offices of Jeffrey D. Gold, A professional Law Corporation can provide the expertise and experience needed to assist you. Call us at TEL: 562-348-9702 or by e-mail to schedule a free initial consultation. We will discuss your options and give you a clear explanation of our services.

For a free initial consultation with The Law Offices of Jeffrey D. Gold, call us at TEL: 562-348-9702 or contact us online.

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