California Probate - Law Offices of Janet Brewer Blog

What’s Involved in the Probate Process?

“The probate process refers to court proceedings that you have to go through when a loved one passes on, and they have left an asset in their name.”

SWAAY’s recent article entitled “What is the Probate Process in Florida?” says that while every state has its own laws, the probate process can be fairly similar. Here are the basic steps in the probate process:

The family consults with an experienced probate attorney. Those mentioned in the decedent’s will should meet with a probate lawyer. During the meeting, all relevant documentation like the list of debts, life insurance policies, financial statements, real estate title deeds, and the will should be available.

Filing the petition. The process would be in initiated by the executor or personal representative named in the will. He or she is in charge of distributing the estate’s assets. If there’s no will, you can ask an estate planning attorney to petition a court to appoint an executor. When the court approves the estate representative, the Letters of Administration are issued as evidence of legal authority to act as the executor. The executor will pay state taxes, funeral costs, and creditor claims on behalf of the decedent. He or she will also notice creditors and beneficiaries, coordinate the asset distribution and then close the probate estate.

Noticing beneficiaries and creditors. The executor must notify all beneficiaries of trust estates, the surviving spouse and all parties that have the rights of inheritance. Creditors of the deceased will also want to be paid and will make a claim on the estate.

Obtaining the letters of administration (letters testamentary) obtained from the probate court. After the executor obtains the letter, he or she will open the estate account at a bank. Statements and assets that were in the deceased name will be liquidated and sold, if there’s a need. Proceeds obtained from the sale of property are kept in the estate account and are later distributed.

Settling all expenses, taxes, and estate debts. By law, the decedent's debts must typically be settled prior to any distributions to the heirs. The executor will also prepare a final income tax return for the estate. Note that life insurance policies and retirement savings are distributed to heirs despite the debts owed, as they transfer by beneficiary designation outside of the will and probate.

Conducting an inventory of the estate. The executor will have conducted a final account of the remaining estate. This accounting will include the fees paid to the executor, probate expenses, cost of assets and the charges incurred when settling debts.

Distributing the assets. After the creditor claims have been settled, the executor will ask the court to transfer all assets to successors in compliance with state law or the provisions of the will. The court will issue an order to move the assets. If there’s no will, the state probate succession laws will decide who is entitled to receive a share of the property.

Finalizing the probate estate. The last step is for the executor to formally close the estate. The includes payment to creditors and distribution of assets, preparing a final distribution document and a closing affidavit that states that the assets were adequately distributed to all heirs.

Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”

Protecting Inheritance from the Taxman

“Received an inheritance of cash, investments, or property? Here are four ways that can help you keep it from being swallowed up by taxes.”

Wealth Advisor’s recent article entitled “4 Ways to Protect Your Inheritance from Taxes” explains that inheritances aren’t considered income for federal tax purposes—whether it’s cash, investments or property. However, any subsequent earnings on the inherited assets are taxable, unless it comes from a tax-free source. You must report the interest income on your taxes. Any gains when you sell inherited investments or property are also taxable (but you can usually also claim losses on these sales). Remember that state taxes on inheritances vary, so ask an experienced estate planning attorney for details. Let’s look at fours steps you can take to protect your inheritance:

Look at the alternate valuation date. The basis of property in a decedent’s estate is the fair market value (FMV) of the property on the date of death, but the executor might use the alternate valuation date, which is six months after the date of death. This is only available, if it will decrease both the gross amount of the estate and the estate tax liability, typically resulting in a larger inheritance to the beneficiaries. If the estate isn’t subject to estate tax, then the valuation date is the date of death.

Use a trust. If you know you’re getting an inheritance, ask that they create a trust for the assets. A trust lets you to pass assets to beneficiaries after your death without probate.

Minimize retirement account distributions. Inherited retirement assets aren’t taxable, until they’re distributed. There are rules as to when the distributions must happen. If one spouse dies, the surviving spouse usually can take over the IRA as his or her own. Required minimum distributions (RMDs) would begin at age 72, just as they would for the surviving spouse's own IRA. However, if you inherit a retirement account from someone not your spouse, you can transfer the funds to an inherited IRA in your name. You have to start taking minimum distributions the year of or the year after the inheritance, even if you're not yet 72.

Make some gifts. It may be wise to give some of your inheritance to others. It will be a benefit to them, but it could also potentially offset the taxable gains on your inheritance with the tax deduction you get for donating to a charitable organization. If want to leave money to people when you die, you can give annual gifts to your beneficiaries while you're still living up to a certain amount—$15,000 for to each person without being subject to gift taxes. Gifting also reduces the size of your estate, which can be important if you're close to the taxable amount. Talk with an experienced estate planning attorney to be certain that you're staying current with the frequent changes to estate tax laws.

Wealth Advisor (Sep. 15, 2020) “4 Ways to Protect Your Inheritance from Taxes”

Does My Estate Plan Need an Audit?

“Estate planning is the process of transferring the management of your assets, if and when you are unable to manage them yourself due to disability or death. Whether you have $100 or $100 million you should have an estate plan.”

You should have an estate plan because every state has statutes that describe how your assets are managed, and who benefits if you don’t have a will. Most people want to have more say about who and how their assets are managed, so they draft estate planning documents that match their objectives.

Forbes’ recent article entitled “Auditing Your Estate Plan” says the first question is what are your estate planning objectives? Almost everyone wants to have financial security and the satisfaction of knowing how their assets will be properly managed. Therefore, these are often the most common objectives. However, some people also want to also promote the financial and personal growth of their families, provide for social and cultural objectives by giving to charity and other goals. To help you with deciding on your objectives and priorities, here are some of the most common objectives:

• Making sure a surviving spouse or family is financially OK
• Providing for others
• Providing now for your children and later
• Saving now on income taxes
• Saving on estate and gift taxes in the future
• Donating to charity
• Having a trusted agency manage my assets, if I am incapacitated
• Having money for my children’s education
• Having retirement income; and
• Shielding my assets from creditors.

Speak with an experienced estate planning attorney about the way in which you should handle your assets. If your plan doesn’t meet your objectives, your estate plan should be revised. This will include a review of your will, trusts, powers of attorney, healthcare proxies, beneficiary designation forms and real property titles.

Note that joint accounts, pay on death (POD) accounts, retirement accounts, life insurance policies, annuities and other assets will transfer to your heirs by the way you designate your beneficiaries on those accounts. Any assets in a trust won’t go through probate. “Irrevocable” trusts may protect assets from the claims of creditors and possibly long-term care costs, if properly drafted and funded.

Another question is what happens in the event you become mentally or physically incapacitated and who will see to your financial and medical affairs. Use a power of attorney to name a person to act as your agent in these situations.

If, after your audit, you find that your plans need to be revised, follow these steps:

1. Work with an experienced estate planning attorney to create a plan based on your objectives
2. Draft and execute a will and other estate planning documents customized to your plan
3. Correctly title your assets and complete your beneficiary designations
4. Create and fund trusts
5. Draft and sign powers of attorney, in the event of your incapacity
6. Draft and sign documents for ownership interest in businesses, intellectual property, artwork, and real estate
7. Discuss the consequences of implementing your plan with an experienced estate planning attorney; and
8. Review your plan regularly.

You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Forbes (Sep. 23, 2020) “Auditing Your Estate Plan”

Will a ‘Will’ Really Pay Off?

“A will itself is a legal document that describes the process of splitting up one’s personal property and possessions among family and loved ones.”

Wills are often seen as something that only comes up when an elderly person passes away. Because of this notion, many people think that a will is something they’ll only need to worry about decades from now. However, even young adults can benefit from currently having a will.

The Charleston Gazette-Mail’s recent article entitled “Don't have a will? Now might be the time to change that” explains that having a will provides you with a layer of security for your family.

The process of drafting a will itself is pretty simple. A person can get a sense of comfort knowing that their final wishes and requests will be known and respected.

The creation of most wills starts with a person contacting an experienced estate planning attorney. He or she will usually send them a questionnaire to complete that asks about the spelling of their names and those of family members, as well as the items and properties they want to list. Once the attorney has that information, the client and the attorney meet to talk about the goals of the client. The attorney will get back to the client in a few weeks with a draft or estate plan. After a review, the client returns to execute the document before witnesses and a notary.

It truly is important for young people to have wills, especially those who are unmarried or have children. If you have young children, your will states the guardians for your children.

If a parent without a spouse doesn’t name a guardian in a will for their child, the court will make a selection.

Estate planning attorneys usually will charge a flat fee for a drafting will. While there are alternatives to the traditional process, going online to find a will-making program isn’t recommended, especially if you have a complex estate. These should be left to experienced estate planning attorneys. However, even for a Regular Joe, most experts say to avoid these sites entirely.

Attorneys can make a lot of money from these do-it-yourself will websites because they often result in litigation. Some of these websites can cause errors in the drafting of a will. This leads to a law firm making far more money than they would have if the client had simply drafted a will with an estate planning lawyer in the first place.

Death is an uncomfortable topic for many people. Many people don’t know what options are available, and they’re often scared to ask. However, with COVID-19, people are beginning to realize the importance of a will and a complete estate plan.

Reference: The Charleston Gazette-Mail (Aug. 23, 2020) “Don't have a will? Now might be the time to change that”

What Do I Look for in a Trustee?

“If you decide to leave assets in a trust for your beneficiaries, consider your designation of trustee carefully. The most important person in the trust framework is the trustee, the one responsible for managing trust assets.”

The trustee is tasked with caring for the assets in the trust for one or more beneficiaries.

It is the trustee who handles all the necessary paperwork and sees that tax returns are filed.

FedWeek’s recent article entitled “Your Options for Selecting a Trustee” explains that probate and trust law creates a fiduciary responsibility, so the trustee is accountable to the trust beneficiaries and must serve the beneficiaries’ best interests. Here are the types of trustee one can select:

Individual trustee: this can be a friend or relative who’s probably familiar with everyone involved and may well make the decisions desired by you, the trust creator. If you decide to go with an individual, make sure you choose someone who is trustworthy. It’s the most important qualification of a trustee. Ask yourself if this a is person who I can trust unconditionally to carry out my wishes when I’m gone. You also need to be certain that your trustee is financially responsible. The reason is that a trustee’s duties will include handling your financial accounts and being responsible for your investments. Therefore, finding a person who’s proven themselves to be financially responsible is critical. A trustee needs to deal with financial accounts, as well as the responsibility of accounting to the trust beneficiaries regarding all assets, income and expenses of a trust. Therefore, basic record keeping skills are required. Finally, you need someone who’s available. Choose a trustee who’s likely to be available when the need for his or her services arises. Age, health, job demands and location are all things to take into account, when selecting a trustee.

Institutional trustee: a local bank or trust company might have the resources to manage your assets. They also will have the staying power to handle long-term trusts.

You can also set up a combination of the two. You could designate an institution and an individual as co-trustees. That way, you may get financial expertise and personal attention. If discretionary decisions are permitted, you can leave instructions that both co-trustees must agree.

You can also add “trustee removal” powers into the terms of the trust to reduce the risk that a trustee will prove to be unsatisfactory. A majority vote of adult income beneficiaries may be enough to get a new trustee. That person must be an unrelated person or institution.

When you name an individual as trustee or co-trustee, again make certain that he or she is qualified to do the job, then get his or her consent.

You should also designate a successor trustee, just in case your first choice is unable or unwilling to serve.

Reference: FedWeek (Aug. 13, 2020) “Your Options for Selecting a Trustee”

Does an Ex-Wife Get Her Former Husband’s Inheritance Because He Died of COVID-19?

“My big brother died of COVID-19 and he didn’t have a will. He divorced 20 years ago and has no children, but his ex is telling me she should get an inheritance. Who has the right to his money?”

Nj.com’s recent article entitled “My brother died of COVID-19. Should his ex-wife get an inheritance?” says that it’s unlikely that an ex-wife is entitled to any of her former husband’s assets.

There are three main ways property can transfer at death. They each have different rules.

Joint assets. When property is held as Joint Tenants with Rights of Survivorship (JTWROS), the surviving joint owner (if there are two owners) automatically becomes the sole owner of the property. Usually, jointly owned property is retitled into individually owned property after the divorce. If this was never done, some states (such as New Jersey) automatically change JTWROS property to a different form of joint ownership, called tenancy in common when a divorce is finalized. As a result, with tenants in common property, when one owner dies, his or her 50% ownership interest becomes a probate asset and passes pursuant to his or her will (or the state’s intestacy laws, if they didn’t have a will).

This means that even if the husband in this scenario still owned JTWROS property with his ex-wife when he passed away, she wouldn’t automatically inherit his share. She still has her own 50% share that she owned all along.

Property can also pass by beneficiary designation, like with life insurance or retirement accounts.

Beneficiary designations are typically updated after a divorce. However, again, ask an experienced estate planning attorney about your state laws. For example, New Jersey law revokes a divorced spouse as beneficiary, even if the beneficiary designation was never updated.

In this situation, even the husband named his wife as a beneficiary on an insurance policy or retirement accounts and never changed it, she wouldn’t be able to collect.

Finally, the third way that property can pass, is through the probate process. This means there’s a will.  If there was no will, it would be pursuant to the state’s intestacy laws.

An ex-spouse is never entitled to inherit property under state intestate statutes.

There are two important caveats for these rules. One is that they can be superseded by a divorce decree. Therefore, review the divorce decree to see whether it has any relevant language. The rules also apply to ownership, beneficiary designations or wills that arose during the marriage. Anything that happened after the marriage would not be affected by the divorce.

Contact our office today to schedule your consultation and make sure you know what will happen with your assets.

Reference: nj.com (Aug. 4, 2020) “My brother died of COVID-19. Should his ex-wife get an inheritance?”

What Is a Fiduciary and a Fiduciary Duty?

“A fiduciary is someone who manages property or money on behalf of someone else. When you become a fiduciary, the law requires you to manage the person’s assets for their benefit—and not your own.”

First, a fiduciary duty is the requirement that certain professionals, like attorneys or financial advisors, work in the best financial interest of their clients. By law, members of some professions with clients are bound by fiduciary duty.

Forbes’ recent article entitled “What Is Fiduciary Duty?” explains that in a fiduciary relationship, the person who must prioritize their clients’ interests over their own is called the fiduciary. The person getting the services or assistance is called the beneficiary or principal.

You will frequently see a fiduciary relationship with certain types of professionals, like attorneys and financial advisors. A fiduciary duty is a serious obligation, and if a fiduciary doesn’t fulfill his or her duties, it’s known as a breach of fiduciary duty. Fiduciaries must act in a beneficiary’s best interest. They have two main duties: duty of care and duty of loyalty. Fiduciaries may have different or additional requirements, depending on their industry.

With the duty of care, fiduciaries must make informed business decisions after reviewing available information with a critical eye. Lawyers must act carefully in performing work for clients. Care is determined by the prevailing standards of professional competence in the relevant field of law and geographic region. To abide by the duty of loyalty, fiduciaries must not have any undisclosed economic or personal conflict of interest. They can’t use their positions to further their own private interests. For example, fiduciary financial advisors might adhere to the duty of loyalty by disclosing recommendations from which they’ll receive a commission.

Other common professions or positions that require fiduciary duties include directors of corporations and real estate agents, as well as those discussed below:

Trustee of a Trust. When you want your assets to transfer to someone after you die, you can put them into a trust. The trustee who’s in charge of the trust has a fiduciary duty to manage the trust and its assets in the best interests of the beneficiary who will one day inherit them.

Estate Executor. The person who manages your estate and handles your affairs is your estate executor. He or she has a fiduciary responsibility to your heirs and next of kin to distribute the estate according to your wishes.

Lawyer. Your attorney must disclose any conflicts of interest and must work with your best interests in mind.

Financial Advisors. Financial advisors who are fiduciaries must act in the best interest of their clients and offer the lowest cost financial solutions to fit their clients’ needs. However, it important to note that not all financial advisors are fiduciaries.

Reference: Forbes (July 28, 2020) “What Is Fiduciary Duty?”

What Happens If I Don’t Fund My Trust?

“If you have updated your estate plan during the Covid crisis and even found a way to sign your documents while maintaining social distance, do not overlook the last step of trust funding.”

Trust funding is a crucial step in estate planning that many people forget to do.

However, if it’s done properly, funding will avoid probate, provide for you in the event of your incapacity and save on estate taxes.

Forbes’s recent article entitled “Don’t Overlook Your Trust Funding”looks at some of the benefits of trusts.

Avoiding probate and problems with your estate. If you’ve created a revocable trust, you have control over the trust and can modify it during your lifetime. You are also able to fund it, while you are alive. You can fund the trust now or on your death. If you don’t transfer assets to the trust during your lifetime, then your last will must be probated, and an executor of your estate should be appointed. The executor will then have the authority to transfer the assets to your trust. This may take time and will involve court. You can avoid this by transferring assets to your trust now, saving your family time and aggravation after your death.

Protecting you and your family in the event that you become incapacitated. Funding the trust now will let the successor trustee manage the assets for you and your family, if your become incapacitated. If a successor trustee doesn’t have access to the assets to manage on your behalf, a conservator may need to be appointed by the court to oversee your assets, which can be expensive and time consuming.

Taking advantage of estate tax savings. If you’re married, you may have created a trust that contains terms for estate tax savings. This will often delay estate taxes until the death of the second spouse, by providing income to the surviving spouse and access to principal during his or her lifetime while the ultimate beneficiaries are your children. Depending where you live, the trust can also reduce state estate taxes. You must fund your trust to make certain that these estate tax provisions work properly.

Remember that any asset transfer will need to be consistent with your estate plan. Your beneficiary designations on life insurance policies should be examined to determine if the beneficiary can be updated to the trust.

You may also want to move tangible items to the trust, as well as any closely held business interests, such as stock in a family business or an interest in a limited liability company (LLC). Ask an experienced estate planning attorney about the assets to transfer to your trust.

Fund your trust now to maximize your updated estate planning documents.

Reference: Forbes (July 13, 2020) “Don’t Overlook Your Trust Funding”

Am I Worth More Dead than Alive?

“If you are like many moderately successful Americans, chances are you are worth more dead than alive. In many cases a lot more.”

A long-time federal worker or retiree may in fact be worth more dead than alive, especially if you own a house and are still married to your original spouse. If you have life insurance and a Thrift Savings Plan account, it’s also most likely true.

Federal News Network’s article entitled “Wonder if you’re worth more dead than alive?” says that in this pandemic, we’re all at risk and some a lot more than others. Therefore, if you have family you want to leave something to, if you leave unexpectedly, is everything in order?

Do you know the difference between having a last will and setting up an estate? Should you have one or both?

If you’re struggling with the answer, you need to sit down with an experienced estate planning attorney and figure out what you want to do.

Do you know the function of a power-of-attorney or of a medical directive? If you become gravely ill or injured—perhaps you fall into a vegetative state—do you want the healthcare staff to take heroic measures to keep you alive?

If you don’t make that decision beforehand, you may force a family member to make that decision.  It may not be what you had wanted. It can make a very stressful time even worse for them.

Let’s look at some things you need to consider.

A basic estate plan includes powers or attorney and some documents that instruct your executor how to distribute your assets at your death.

You should have an advance medical directive or health care power of attorney, which designates an individual that you select to make health care decisions for you, if you’re unable to make these decisions for yourself. This document will also include end of life instructions in the form of a living will that state the types of actions you want to have taken on your behalf if you’re terminally ill, in a vegetative state, and if you’re unlikely to recover. A primary concern of a living will is whether you want to be kept alive by artificial means, such as with a ventilator.

You also should have a durable financial power of attorney. This document allows your chosen agent to manage your financial affairs, if you’re incapable of managing your own affairs.

Estate planning is more than just a last will. A last will is essential but most people have many assets that won’t be impacted by their last wills like a jointly owned property, and life insurance or retirement plans with a designated beneficiary. You must specify how you want your assets to be distributed after your death.

Reference: Federal News Network (July 15, 2020) “Wonder if you’re worth more dead than alive?”

When Exactly Do I Need to Update My Will?

“It is also important to realize that it isn’t merely “why” you are updating your will, but “when” you are updating that can make all the difference. Acting too late (or too early) may mean your changes are no longer appropriate or even immediately invalidated.”

Many people say that they’ve been meaning to update their last will and testament for years but never got around to doing it.

Kiplinger’s article entitled “12 Different Times When You Should Update Your Will” gives us a dozen times you should think about changing your last will:

1. You’re expecting your first child. The birth or adoption of a first child is typically when many people draft their first last will. Designate a guardian for your child and who will be the trustee for any trust created for that child by the last will.

2. You may divorce. Update your last will before you file for divorce, because once you file for divorce, you may not be permitted to modify your last will until the divorce is finalized. Doing this before you file for divorce ensures that your spouse won’t get all of your money, if you die before the divorce is final.

3. You just divorced. After your divorce, your ex no longer has any rights to your estate (unless it’s part of the terms of the divorce). However, even if you don’t change your last will, most states have laws that invalidate any distributive provisions to your ex-spouse in that old last will. Nonetheless, update your last will as soon as you can, so your new beneficiaries are clearly identified. 

4. Your child gets married. Your current last will may speak to issues that applied when your child was a minor, so it may not address your child’s possible divorce. You may be able to ease the lack of a prenuptial agreement, by creating a trust in your last will and including post-nuptial requirements before you child can receive any estate assets.

5. A beneficiary has issues. Last wills frequently leave money directly to a beneficiary. However, if that person has an addiction or credit issues, update your last will to include a trust that allows a trustee to only distribute funds under specific circumstances.

6. Your executor or a beneficiary die. If your estate plan named individuals to manage your estate or receive any remaining funds, but they’re no longer alive, you should update your last will.

7. Your child turns 18. Your current last will may designate your spouse or a parent as your executor, but years later, these people may be gone. Consider naming a younger family member to handle your estate affairs.

8. A new tax or probate law is enacted. Congress may pass a bill that wrecks your estate plan. Review your plan with an experienced estate planning attorney every few years to see if there have been any new laws relevant to your estate planning.

9. You come into a chunk of change. If you finally get a big lottery win or inherit money from a relative, update your last will so you can address the right tax planning. You also may want to change when and the amount of money you leave for certain individuals or charities.

10. You can’t find your original last will. If you can’t locate your last will, be sure that you replace the last will with a new, original one that explicitly states it invalidated all prior last wills.

11. You purchase property in another country or move overseas. Many countries have treaties with the U.S. that permit reciprocity of last wills. However, transferring property in one country may be delayed, if the last will must be probated in the other country first. Ask your estate planning attorney about having a different last will for each country in which you own property.

12. Your feelings change for a family member. If there’s animosity between people named in your last will, you may want to disinherit someone. You might ask your estate planning attorney about a No Contest Clause that will disinherit the aggressive family member, if he or she attempts to question your intentions in the last will.

If you have any questions about your current will or any other estate planning documents, please call or email us today.

Reference: Kiplinger (May 26, 2020) “12 Different Times When You Should Update Your Will”