GENERAL LEGAL QUESTIONS
ESTATE PLANNING/TRUST/PROBATE
WILLS AND PROBATE
LIVING TRUSTS
IRREVOCABLE TRUSTS
POWERS OF ATTORNEY
CONSERVATORSHIPS
GUARDIANSHIPS
Will there be a fee for an initial consultation?
Ask when scheduling the first appointment if there will be a charge and, if so, what the charge will be.
How are attorney fees charged?
Attorney fees may be based on hourly rates, a contingency fee based upon the amount of a recovery, a probate statutory fee, or a flat fee determined before the work is begun. The basis of fees is discussed at the first meeting in our office. We always use a written fee agreement. Generally, estate planning is quoted on a flat fee basis; probate on a statutory fee basis; Trust administration, conservatorships and family law on an hourly basis. A retainer is a deposit on work to be performed by the attorney.
Is self-representation allowed in California?
Yes. However, because of the intricacies of the law, individuals are best represented by qualified attorneys. The old adage is, "He who represents himself has a fool for a client." Trusts and Wills from a formbook or off the Internet may result in costly errors. Executors, Trustees, Conservators and Guardians are all fiduciaries held responsible to a very high standard by the law. Parties in family law/divorce matters who are unable to afford the services of an attorney should contact the Ventura County Superior Court Pro Per Clinic for assistance at 654-3962.
How can a client keep attorney fees to a minimum?
Select an attorney with expertise in your matter and provide information and materials to your attorney in an organized fashion. Organization takes time; provide requested information without reminders.
What is a certified specialist attorney?
A California attorney who is certified by the California State Bar Board of Legal Specialization has complied with the following requirements: taken and passed a written examination in the specific area of the law, demonstrated a high level of experience in the specific area of the law, fulfilled ongoing education requirements, and been favorably evaluated by other attorneys and judges familiar with the attorney's work. Family Law as well as Estate Planning, Trust and Probate Law are designed specialty areas.
Does a Will avoid probate in California?
No, a Will does not avoid probate. If the total value of a person's assets passing at death to person(s) other than a surviving spouse is in excess of $100,000, then a probate is required unless certain exceptions apply. Property held in the name of a living Trust, beneficiary designated assets such as life insurance, annuities, IRAs and other retirement assets, a mobile home, and joint tenancy property are exceptions that do not require probate.
What is probate?
Probate is a judge supervised Court procedure during which the Court determines the validity of a Will, an inventory of assets is filed with the Court, creditors are paid and the assets are distributed to the beneficiaries named in the Will.
How long does probate Court administration take?
The probate can take as little as nine months, but usually takes one to two years to be completed.
How much does a probate cost?
The Court filing fee is approximately $200. The Probate Referee's fee is based upon one-half of one percent of the assets inventoried. The attorney's fee and the executor's fee are based upon a percentage of the estate (four percent of the first $100,000, three percent of the next $100,000, two percent of the next $800,000 and subsequently declining). Usually the fees are significantly lower when a living Trust is used rather than probate Court administration. Time and money are the two reasons why most people prefer to avoid the cost of probate.
What is a living Trust?
A living trust is both a legal document that controls who will receive your assets when you die and an entity somewhat like a partnership or corporation. The Trust document states your wishes in detail and directs the manager of the trust ("Trustee") how to manage the Trust. Your assets are transferred to the Trust. It is the transfer of assets during your lifetime that avoids the probate process. The Trust may be changed and amended during your lifetime, but it becomes irrevocable at your death.
What is an A-B Trust?
An A-B Trust is a Trust that is a single Trust while both spouses are living and then divides into two Trusts after the death of the first spouse. It is generally used by couples who have combined estates close to $675,000 in 2001, $1 million in 2002, $1.5 million in 2004, $2 million in 2006, and $3.5 million in 2009. Estate tax is eliminated in 2010, but the law eliminating estate tax must be re-enacted in 2011, and if it is not, then the exemption decreases to $1 million per person. Based upon this uncertainty and the fact that many couples prefer to use an A-B Trust independent of tax issues, the A-B Trust will probably remain a cornerstone of estate planning for most married couples.
What is the non-tax benefit of an A-B Trust?
Both the A and the B Trust are available for use for the needs of the surviving spouse. However, the surviving spouse may amend and revoke the A Trust (the Trust of the living spouse), even change the beneficiaries. The B Trust (holding the assets of the deceased spouse) may not be amended or revoked, and the surviving spouse may not change the beneficiaries. It is the certainty of the B Trust and the flexibility of the A Trust that is so beneficial.
What is a Special Needs Trust?
A special needs trust is a trust created for the purpose of preserving governmental benefits for disabled or aged beneficiaries. A well designed and administered special needs trust can provide funds to supplement a disabled or aged beneficiary's governmental benefits without interfering with governmental aid. A special needs trust may be created during the lifetime of parents of a disabled person in their living trust that later becomes irrevocable at death of the parent. The special needs trust created by a parent or other third party is often referred to as a third party special needs trust. A litigation special needs trust is created by the court with the proceeds of a settlement or judgment and is usually irrevocable.
What is an Irrevocable Life Insurance Trust?
This is an irrevocable Trust that cannot be amended or revoked, created for the purpose of owning life insurance, which will pass at death without imposition of estate tax. The life insurance Trust may also invest in other investments. When life insurance is not required to pay death taxes due to the increase in the exemption from estate tax and eventual elimination of estate tax, the cash value of the life insurance may be reinvested in other investments if the Trustee deems other investments will provide a greater return.
What is a Charitable Remainder Trust?
A Charitable Remainder Trust is an irrevocable Trust that cannot be amended or revoked, that allows the person who creates the Trust to give assets to a favorite charity but retain certain benefits such as income from the Trust during lifetime. One of the primary benefits of the Trust is the income tax deduction available to the person creating the Trust. Most often highly appreciated assets are transferred to the Charitable Remainder Trust, sold by the Trust without imposition of capital gain, and then reinvested in diversified assets.
What is a Durable General Power of Attorney?
A Durable General Power of Attorney allows someone, an "agent," to manage assets not held in a living Trust. Generally, a "springing" durable general power of attorney that springs into use upon incompetency is preferable to giving an agent an immediate power to manage your assets. This power survives an incompetency, but ends at death. Care must always be taken to select an agent wisely because the agent under this power of attorney has very broad powers. A Durable General Power of Attorney is usually employed along with estate plans based upon a simple Will and estate plans based upon a living Trust because planning for incompetency is just as important as planning to transfer assets at death.
What is an Advance Directive For Health Care?
An Advance Directive For Health Care (sometimes referred to as simply an "advance directive" or a "health care power of attorney") is a document that allows someone to name an agent to make health care decisions if the individual is incompetent and unable to make their own health care decisions. It allows the agent to consent to medical care, decline medical procedures, deal with issues regarding termination of life support, consent to autopsy and organ donations, and make funeral and burial directions.
What is a conservatorship?
A conservatorship is a legal proceeding where one person ("conservator") is appointed by a judge to manage the affairs of an incompetent person ("conservatee"). The judge must find that the conservatee is incompetent to provide for the individual's own basic needs. It may be a conservatorship of the person and/or estate.
Who usually becomes the conservator?
The Court usually names the person the incompetent person nominated in a power of attorney or a close family member or friend. Often no family member or close friend is able to act as conservator, and then the Court appoints a private professional conservator.
Is a conservatorship expensive?
Because the conservatorship requires a strong showing of incompetency, a detailed petition to the Court, and annual accountings, the procedure is time consuming and complex. Therefore, the conservatorship is costly. In addition to the Court filing fee of approximately $200, a Court investigation fee of approximately $350 is required. Attorney's fees and conservator's fees are normally based upon hourly rates paid after Court approval.
Is a conservatorship always required when someone is unable to pay their bills and provide for their personal care?
No, there may be plans in place, which may be used to avoid a conservatorship. A Durable General Power of Attorney, a power of attorney on bank accounts, a joint account with dual authority to sign, a living Trust and a Health Care Power of Attorney provide an alternative to a conservatorship. All of these alternatives should be reviewed before commencement of a conservatorship action.
What is a guardianship?
A guardianship is a Court procedure in which the Court appoints an adult person, entity or institution to care for the person and/or estate of a minor. A minor who is legally married or divorced cannot have a guardian appointed. A minor for whom a guardian has been appointed is called a "ward". The guardian is the person appointed by the Court to care for the ward.
When is a guardianship usually created?
A guardianship may be created for the care of the person of a minor child, or the estate of a minor, or for both. Usually guardianships of the person of a minor are created when parents are unable to provide a safe, secure home for the child. Where a minor, even one who lives with one or both parents, inherits or receives property worth more than $20,000, a guardianship of the estate is required.
Who usually becomes the guardian?
The Court may appoint a guardian nominated by the parent. The nomination must be in writing. Before a guardian can be appointed, the Court will conduct an investigation to determine whether appointment of the guardian will be in the best interests of the child. The investigator may interview the child, the proposed guardian, and review the background and history of the proposed guardian. A confidential report will be prepared for the Court to consider in evaluating whether to appoint the proposed guardian to care for the minor.
How long does the guardianship last?
Guardianships may be temporary, meaning for a limited time, or they may be permanent. A permanent guardianship will terminate when the minor reaches age 18, or sooner if circumstances warrant an earlier termination.
What happens if the guardian wishes to be removed or resign?
If a guardian wishes to be removed or resign, but the guardianship is to continue with another guardian in place, the new proposed guardian needs to be approved by the Court and appointed on a temporary basis before the general guardianship will change. A petition to resign may be heard at the same time as the hearing on appointment of the general guardian.
