Estate Planning And Probate Law Frequently Asked Question

California Estate Planning and Probate Law Firm

Estate planning can often seem overwhelming and confusing. To add some clarity to the process, our attorneys have compiled a list of our FAQs about estate planning in the space below. If you have further inquiries, do not hesitate to contact our office, and we will happily answer your questions.

What is Probate?

Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.

Probate cases are legal cases filed within probate court that address an individual’s estate assets when they pass away. It is a long and slow process, but it can be a necessary one. If a loved one passes away with a simple will naming you as a beneficiary, or if you are a family member and had no will, steps will need to be taken to address their assets. Such steps depend largely on the nature and value of their assets. The probate process, on average, takes about a year. We must petition the court to admit a will to probate, or if there is no will, to open the estate and appoint an administrator to represent the estate.

You or another family member can usually serve as administrator. Once an administrator or personal representative is appointed, that person then has the authority to act on behalf of the estate, communicate with banks and other financial institutions, and conduct any other business necessary to close the estate. The largest task within a probate is the accounting, wherein the court needs to be presented with an accounting of any assets and debts within the estate, and ultimately what will be done with them.

Note that attorney’s fees are not collected until the end of the case, and are payable directly from the estate. In most instances, if there is a home that is sold, the money from the sale would be used to pay the attorney’s fees at the end of the case.  Attorney’s fees are based on a statutory fee schedule based on the gross value of the estate. Beyond the attorney’s fees, there are costs associated with filing a probate case. The court requires that a filing fee be paid to file petitions and certain paperwork throughout the case, a publication has to be done in a local newspaper, and an appraisal may be required of certain assets. Depending on the newspaper pricing, the amount of costs can vary. We typically ask our clients to front a certain amount to cover these costs, but we do not take any attorney’s fees until the end of the case. If you have any questions regarding the steps you need to take, please contact us for a free telephone consultation. We will listen to your situation and figure out what needs to be done moving forward.

Are There Alternatives to Probate?

There are often alternatives to probate in each state across the United States. It really depends on the value of the estate and the kind of assets in the estate. Sometimes, probate is the only way, but it is important to speak to an attorney before taking action. Probate and probate procedures can often prove to be a maze to laypersons. Employees at banks and financial institutions will often demand letters of administration or letters testamentary before they are willing to do anything.

These are probate documents. They often make people feel like probate is a must. The reality is, these bank employees did not go to law school. They often receive minimal training on probate procedures and defer simply to what their supervisors told them. It might make their job easier if you went through probate, but it does not make yours. Contact one of our attorneys to see what options are available.

If the decedent had life insurance, bank accounts, or other accounts on which beneficiaries were named, then probate may not be necessary as the named beneficiaries would have a claim to those items. It would be a simple matter of providing a death certificate to those financial institutions. Alternatively, if the decedent had a bank account without a beneficiary named, but the estate is not more than $184,500, we would be able to go through a simple affidavit procedure.

Note that the dollar figures mentioned here for small estate thresholds change over time, and the actual amount the court uses to determine whether a matter qualifies as a small estate is dependent on the date of death. This small estate figure was $150,000 for a long time for dates of death before January 1, 2020. For dates of death from January 1, 2020, through March 31, 2022, the figure is $166,250.

What is Joint Tenancy with Rights of Survivorship? (in some states “Tenancy by the Entirety” when between spouses)

This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

What is a Will?

The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

What is a Living Will?

Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.

Creating a Will Online vs. With a Lawyer?

Don’t know if you should hire a lawyer to create your will or utilize third-party services such as LegalZoom or other legal document preparation firms? We sometimes compare hiring an attorney to hire a mechanic. If something is wrong with your car, as an intelligent person, you could probably spend the time and effort to educate yourself on what is wrong and attempt to fix it. With trial, error, and some potential mistakes, you could probably repair it yourself. Most people hire a mechanic because it is easier, and they want it done properly by a professional.

Creating a living trust and estate plan is a complicated matter. We have spent years as attorneys dealing with various situations, and trust language is constantly evolving. It is easy to make mistakes in “do it yourself” trusts, and such mistakes can be devastating. Unlike repairing a vehicle, where you could test drive it, a mistake in a trust generally will not be discovered until after you pass, and it is already too late. We commonly deal with the aftermath of flawed trusts, and such mistakes usually result in your beneficiaries having to go through probate.

These mistakes can end up costing beneficiaries substantially more in terms of time and money than what would have been spent on a professionally done trust. As discussed in our probate section, probate fees are based on the estate's gross value and can easily cost tens of thousands of dollars. At Werner Law Firm, our living trust attorneys will tailor and prepare your estate plan to address your unique situation and goals. We will work to ensure that your estate plan is set up properly to take care of your beneficiaries and give you peace of mind.

What does Intestacy mean?

If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.

What are Beneficiary Designations?

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

What is a Durable Power of Attorney and when do I need one?

These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.

What is a Revocable Living Trust?

This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.

What Are The Differences Between Wills and Trusts?

Both a will and a trust designate who you want to have received your property when you pass away, how they will receive it, and who will be in charge of distributing the property. You can leave your entire estate to a single individual, split your estate between your children, or designate particular items for particular people. Generally speaking, you have a great amount of freedom in making such designations. Living trusts are generally preferred when you own real property or if you have a large estate.

Almost anyone who owns real property should have a living trust. If you had a will, your real property would still need to be transferred out of your name on death. Naming a beneficiary would advise the court who you wanted to have received the real property. However, you would still have to go through probate or a probate procedure to effect that transfer of ownership. Probate cases can be expensive and can sometimes take over a year to complete. In probate cases, statutory probate fees are based on the gross value of the estate:

  • 4% of the first $100,000
  • 3% of the second $100,000
  • 2% of the next $800,000

That means that if the estate is worth $400,000, the statutory fees you would pay would be $11,000. Filing fees and miscellaneous costs (publication in a legal newspaper, etc.) would bring the total probate fees and costs up to around $13,000. When considering the amount of money and time that loved ones would have to put into a probate case, a living trust is a much preferred and easier alternative.

When you create a living trust, you transfer any real property you own into the trust you want to control. While you are alive, you control and manage the living trust. You can amend it, modify terms, or revoke it. You can sell or refinance any real property owned by the trust, and you sign documents as trustee of the trust.

When creating the trust, you also name a successor trustee. That individual then takes over control of the trust and trust property when you pass away, allowing them to sell and manage trust property without having to go through probate or any court process. Of course, they are responsible for managing and distributing the trust according to your wishes as outlined in the trust.

With a living trust, you also have a lot more freedom to control your property after passing away. For example, if you have minor children, you can set up the trust to receive property when they reach a certain age or even have multiple distributions when they reach certain ages. Instead of receiving assets outright at age 18, a trust can call that their share would be received as follows:

  • ⅓ at age 22
  • ⅓ at age 25
  • ⅓ at age 30

Werner Law Firm’s estate planning attorneys are dedicated to representing clients who wish to create a smooth succession plan. If you have any questions or want an overview of the process, feel free to contact us for a free telephone consultation. We will explain the legal process of creating these documents, determine what would be most beneficial to you, and figure out a game plan moving forward.

Who Should Have a Revocable Living Trust?

Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.

Can You Deed Property to Your Children Instead of Creating a Trust?

Some people take the approach of simply transferring assets or signing a deed to put their children on title to their property. This is generally a bad idea, for a number of reasons:


You are essentially giving away your property while you are alive. By deeding them property and putting them on title, they have an immediate ownership interest in the property. While family members usually will honor your wishes, we have seen situations where there is a falling out between family members years later. In such a case, you could potentially be evicted from your own home as they now have an ownership interest.

Exposure to Creditors

By giving family members immediate ownership interest in the property, you are exposing your property to that family member’s creditors. For example, if you put your son on title to property, and he has a substantial amount of debt, his creditors could sue him and go after the home. Even if he does not have debts, he could accidently cause a car accident or injure someone, which could expose him to liability. If he is sued, and there are major damages involved, the house could be put at risk. While the odds of this happening are hopefully slim, it is something that people need to be aware of.

Capital Gains Tax

One of the most compelling reasons to have a living trust is the benefit your beneficiaries can receive in terms of avoiding capital gains tax. Generally, if you sell your property while you are alive, you will be taxed on the difference between the amount you originally purchased your property for and the amount that you sell it for. For instance, if you originally purchased your property for $100,000 and you sell it for $300,000, then the $200,000 increase in value could be subject to Capital Gains Tax.

When you transfer ownership to a family member, their basis for capital gains tax purposes is the value of the property as of the date of the transfer. Since property values traditionally go up as time goes on, it is better to have that transfer occur later in time. A trust can allow that transfer to occur later in time, when you pass away. Alternatively, if you put them on title before you pass away and they later sell the property, they are much more likely to pay more in terms of capital gains tax.

Given all of the above, setting up a living trust and estate plan is generally the best plan to take care of your family and beneficiaries. If you have any questions or would like an overview of the process, feel free to contact us for a free telephone consultation. We will explain the legal process in creating these documents, determine what would be most beneficial to you, and figure out a game plan moving forward.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. See full disclaimer here.
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