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Creating an estate plan can help ensure that your assets are managed and distributed according to your wishes after you pass away. However, it can also help you during your lifetime. Here are some of the top reasons to create an estate plan:
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In California, as in many other jurisdictions, joint tenancy and tenancy in common are two different forms of property ownership, each with its own characteristics and implications. Here's a breakdown of the key differences between joint tenancy and tenancy in common in California:
In California, a will and a living trust are two different estate planning tools that serve similar purposes but have distinct characteristics. Here are the main differences between a will and a living trust:
However, it's important to note that estate planning is a complex process, and the suitability of a will or a living trust depends on individual circumstances. It's best to consult with an experienced estate planning attorney in California to determine the most appropriate approach for your specific needs and goals. What if you forget to re-title all your assets into the name of your living trust? Will your heirs necessarily be going through the probate process? Well, thanks to a 1993, your family might be able to back-door any such forgotten assets into your trust by using the Heggstad Petition.
The Heggstad Petition refers to a legal process in California that allows for the transfer of assets into a living trust after the trust creator's death, even if those assets were not initially included in the trust. The petition takes its name from the California appellate case, In re Estate of Heggstad, which established the legal precedent for this type of petition. The Heggstad case, decided in 1993, involved the estate of a man named Gunnar Heggstad who had created a living trust but failed to transfer a specific piece of real estate into the trust before his death. The court ruled that the property should be included in the trust based on the decedent's intent and the surrounding circumstances, even though the formal transfer had not occurred. Following the Heggstad decision, California Probate Code Section 850 was amended to provide a procedure for filing a Heggstad Petition. This petition allows a trustee or interested party to ask the court to confirm the inclusion of assets that were not properly transferred to the trust but were intended to be included. To have a successful Heggstad Petition in California, the following components are typically required:
Probate is the court process of settling someone's estate after the death of that person. It's not always necessary. Just because someone died and they had a few assets doesn't automatically mean their estate will need to go through the probate process. The first step is to inventory all assets. If there is a joint owner on an asset, it goes to the surviving owner. If there is a beneficiary on an asset, it goes to that beneficiary. If the asset is in the name of a trust, the trust will govern the distribution of that asset. Generally, probate is only necessary for assets in the decedent's name alone that do not pass by any other means. Also, in California there is a threshold amount of such assets before you even have to bother going to court. In other words, don't assume probate is automatically necessary.
In California, the probate process can be frustrating, complicated, and time-consuming. It's important to understand the steps involved and the costs and fees associated with the process. Step 1: Filing the Petition for Probate The first step in the California probate process is to file a petition for probate in the court in the county where the deceased person lived. The petition must be filed by the executor named in the deceased person's will or by an interested party if there is no will. The California probate Code outlines a list of individuals who may petition the court for probate (assuming no one has been nominated in a will). In short, a "petition" is a request of the court to appoint someone as the executor of the estate - someone who will be in charge of distributing the decedent's assets. The petition must include information about the deceased person's assets, liabilities, debts, and beneficiaries. The probate filing fee varies by county but typically ranges about $500. Step 2: Appointment of Executor or Administrator Once the petition is filed, the court will schedule a hearing date to appoint an executor or administrator for the estate. The executor is usually named by the decedent in the will, but if there is no will, the court will appoint an administrator. The executor or administrator is responsible for managing the decedent's assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries. The executor or administrator must often post a bond, which is a type of insurance policy that ensures the estate will be properly managed. The cost of the bond varies depending on the size of the estate but can range from a few hundred to several thousand dollars. In some cases, the court might waive the bond. Usually the court will insist on a bond even if it's waived in the will. Step 3: Inventory and Appraisal of Assets After the executor or administrator is appointed by the court, they must prepare an inventory and appraisal of the decedent's assets. This includes identifying all of the assets, such as bank accounts, real property, and personal property, and determining the value of said property. The cost of the appraisal varies depending on the complexity of the estate but can range from a few hundred to several thousand dollars. Step 4: Payment of Debts and Taxes The executor or administrator must pay all of the debts and taxes before distributing any assets to the beneficiaries. This includes filing tax returns for the decedent and in some cases for the estate. In some cases estate taxes that may be owed. The cost of paying debts and taxes varies depending on the amount owed and the complexity of the estate. Step 5: Distribution of Assets Once the debts and taxes have been paid, the executor (or administrator) can distribute the remaining assets to the beneficiaries (pursuant to a final court order). This includes transferring ownership of real estate, personal property, and distributing any remaining cash or investments. The executor or administrator must file a final accounting with the court, which details all of the income, expenses, and distributions made from the estate. The court issues a final court order closing out the probate and instructing the executor what to do. Probate costs and fees varies depending on the size and complexity of the estate. Some costs and fees that may be associated with the probate process include:
Overall, the cost of probate in California can range from a few thousand dollars to tens of thousands of dollars, depending on the size and complexity of the estate. It's important to consult with an experienced estate planning attorney to understand the probate process and the costs and fees involved. If you plan your estate properly, you can avoid probate altogether. Probate is a public process, takes a long time, and can be quite frustrating to all those involved. VIDEO TRANSCRIPT:
Hello everyone, this is Robert Mansur and welcome to the Estate Plan Review questionnaire. Now, this is the questionnaire that you'd fill out if you are asking us to review an existing estate plan. So you have an existing will, existing living trust, healthcare documents, powers of attorney, all of that stuff. This is the questionnaire that you should be filling out. If you are coming to us to create an estate plan from scratch or the first time as an individual or a couple, you'd click on the get started page, which is at the very top of this page right here. Also, if you're just coming in for a general consultation, we are not reviewing your estate plan. There is a special form for that as well. But here is what you'd fill out if you have an existing plan that we are gonna be reviewing. So on this page, just indicate your first and last name, any additional people if you're a married couple, the date of your consultation, which you would have worked out with my office in advance by calling us, how you learned about our office - If you could indicate that here, if somebody referred you your best address right here in the middle and best phone number, also right here, you'd indicate your best email. Now the email is helpful because we can reach you but also you will receive a copy of this completed questionnaire to the email that you provide. Now here is where we ask you what kind of documents do you have that we are gonna be reviewing. So remember, an estate plan is a collection of legal tools, legal documents, and some of those include a living trust, a last will and testament powers of attorney healthcare documents. You might not even be sure what they are, so you can just indicate that here. Or if there's any other documents that we're gonna be reviewing, you can indicate those here as well as this field of course. Now this here, we ask about what is the general goal of this meeting? Is it that you wish to make changes? It's been too long since you reviewed the documents? You just want to check on the estate plan? You don't know what it says - you need some further explanation about it or you're not sure. You can just indicate that here so that we have a heads up as to what you hope to accomplish during our meeting. And that way we can focus the meeting. If there are any changes you wish to make, you can indicate them here as well as indicating any additional concerns you might have. Anything else you think we need to know? If you want to upload the documents, you can upload them here by clicking on the upload button or dragging and dropping them into this field. They will be automatically uploaded. If the files are too large, there are some free resources out there like "filemail.com" or "wetransfer.com" where you can, uh, send us a, uh, large amount of documents that are too large for the form to handle. But in most cases the form should be fine. You can also just drop off the documents to our office or email the documents to us as well. Once you click on submit, you're gonna get a confirmation page you can print out and you will also receive a copy of all of your responses to the email that you've provided. Thank you so much for taking the time to fill out the questionnaire. We really appreciate the opportunity to, to assist you, and we look forward to our meeting. Take care. VIDEO TRANSCRIPTION:Hello everyone, this is Robert Mansour and we're going to take a look at the couples estate planning questionnaire. I'm just gonna walk you through the questionnaire very quickly and hopefully this will help you when you're actually going through it yourself. So you'll notice this is of course for couples. We have other questionnaires for individuals as well as other scenarios. For those, you just have to go up to the Get Started page, click there and you'll find those other questionnaires.
But for a married couple, this is the best one to use. You'll notice that there are six pages, 1, 2, 3, 4, 5, and 6. In various points in the questionnaire, you will see some general instructions that will be outlined, and so you should try to read those as they might be helpful. On the first page here, you're going to indicate the date of your consultation as well as how you learned about my office. If anybody referred you, spouse number one and spouse number two should enter their names as they wish them to appear. So, spouse number one, you just pick one of you to be the spouse number one, and one of you to be spouse. Best phone number to reach you, best email address. Now this is important so that we can reach you, but also you will receive a copy of all the information you enter and we will also receive a copy, but the copy will be sent to the email address that you provide here. You should also provide your mailing address as well - Best mailing address. And then you click on the bottom here, this button that says "next", and it'll take you to the next page. Now, I also want to show you that you can save your progress if you wish by clicking this button that says "Save" at the bottom right. If you click on that button, it will create a unique link that you can email to yourself. So you can enter your email right here. Then click on the button that says "send" and you will receive this link you can click on it and it'll take you right back to where you left off in the form so that you can continue at a later time. Now, truth be told, very few clients do that because the form doesn't take too long to go through, maybe about 20 minutes or so. So let's go to the next page. Here, it asks if either of you have been divorced or both of you, if you have any prior documents you can indicate so here, maybe one of you does or you both don't. It's totally fine, just whatever fits there. And then the next page we start asking you about who your beneficiaries are going to be, where are the assets of your trust going to go after you both pass away, or perhaps some assets will be distributed when one of you passes away. And then additional distributions after the second person passes away. It asks here if you have any children from previous relationships. So do you have any children from your present relationship, if you click on "Yes", for example, it will open a dialogue where you can enter that information. Also, many times you will find that I have provided you with a sample response so that you can see what the response should look like. If you click "No", then of course that dialogue box will close. If you have children from your present relationship, you can indicate those kids here and indicate their birthdays. And if you need to add a child, you can just click here and it will continue to allow you to add as many children as you need. Here you can talk about how you want your estate to distribute to your children or your beneficiaries, and if you want them to inherit from you right away or perhaps in another manner - any special issues that any of your beneficiaries have, such as bankruptcy or alcoholism or substance abuse or special needs that need to be accounted for - you can enter those here. The "Apocalypse" paragraph is right here. In the rare event all your beneficiaries should predecease you, where would you want your estate to go? And again, there's just a simple example right there for you. Finally, here on this page, you'll notice that, we ask you how much leeway does the surviving spouse have after the first spouse dies to make changes to the trust. That's a very important issue, especially if there's a blended family. Let's go to the next page here - page four. Here's where you indicate all the trustees, either the people who would be managing your trust and distributing your assets. You can put the first person and you can also click Add Trustee to add additional people. Usually I like folks to come up with two or three names. The executors are the people in charge of your wills and your will serves as a backup to your trust. It's also where you might nominate guardians for your children. In addition to separate guardianship nominations, if you have any minor children, you can indicate that here. And we'll deal with guardianship nominations as a result. Healthcare directives for each spouse...People to make healthcare decisions for you if you cannot - typically the spouse is first in line for the other. And then you can name a second and third person. Beyond that, here's where you indicate any healthcare instructions that you might want to leave and any additional instructions. Power of attorney is where you'd list somebody to act on your behalf if you cannot act on your own behalf. And that's where you'd indicate that here. And once again, the spouse is first in line, typically followed by one or two additional people. And then on the final page, here is where we ask you to list information about all of your assets. And when you indicate "Yes" it will open a dialogue box where you can add specifics regarding that particular asset. So this one obviously asks about real estate, including your primary residence. If you want to add property, you can click here. And the same goes for bank accounts and things like that. At the very bottom of this page, we ask you to provide any additional information that you know about - your goals and the reasons that you're creating your estate plan, any other information that you'd like us to have. You can also upload documents by clicking on upload or just dragging the documents to this field, and they will be uploaded with your responses. When all is said and done, you just click on "Submit" and your answers will be submitted to our office, and you will also get a copy of all your responses to the email that you provided at the very beginning. There will also be a confirmation page once you click on submit and you can print that page as well. I hope this was helpful for you. This is the couples estate planning questionnaire. Thank you for the opportunity to assist you, and we look forward to seeing you soon. VIDEO TRANSCRIPT:
Hello everyone, this is Robert Mansour and welcome to the general consultation questionnaire. Now, if you are coming to my office for an estate plan, you would fill out a different questionnaire that would be the individual's estate planning questionnaire or the couples estate planning questionnaire, and those could be found on the Get Started page by clicking here. The general consultation questionannire is for exactly that - a general consultation. You just want some information about something that doesn't quite fit into the estate planning box. So you might have a question about what to do after the death of a loved one or you're the trustee of a trust and you're trying to figure out what to do. Those are the kinds of things for a general consultation. If you take a look at the questionnaire here, we just ask for basic information at the top, your name, your last name, if it's a couple married couple, you can add an additional person here, the date of your consultation that you organized with my office by calling our office in advance - also how you learned about our office, your best address, best phone number, and email. Now, the email is also where you're going to get a copy of your responses to this questionnaire - so please provide the best email. That way we can reach you as well. And then down here is where you would indicate what your consultation is about, what are your primary concerns and what you hope to accomplish during that consultation. We want to make sure the consultation is as productive as possible. Down here, you're able to upload documents to this questionnaire, or you can just drag the documents to this field and they will be uploaded automatically. When all is said and done, you click on the button here that says "Submit." Once you've done so, you will see a confirmation page that you can print out and you'll receive a copy of your responses and we will use that to assist us so that we have a productive initial consultation with you. Thank you very much for taking the time to check out this video, and we look forward to meeting you very soon. |
By Attorney Robert MansourRobert Mansour (California State Bar #169118) is an attorney who has been practicing law in California since 1993. Click here to learn more about Robert Mansour. |
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