1.  Calculate the value of the assets

In calculating the value of the deceased’s assets and real estate, all items are included except:

•  Vehicles, trailers, mobile homes, manufactured homes, commercial coaches, truck campers, floating homes, and vessels without documents;

•  Unpaid salary of any amount owing for services in the armed forces, and up to $5,000 owing for services from other employment;

•  Joint tenancy property, life estates, and property passing outright to a surviving spouse;

•  Multiple-party accounts that pass on death directly to another party on the account; accounts that were payable-on-death to another person; and all real estate or other assets held in a living trust.

Real estate that does not fall into one of these categories must be appraised by a probate referee, and this appraisal must be used to calculate the property’s value. 

2.  Prepare an affidavit

The next step for the inheritor is to prepare, or have an attorney prepare, a notarized affidavit – a written statement under oath – that they are entitled to the property of the deceased.  The affidavit must include various other statements that the law requires, including a truthful statement that no other person has a right to the deceased’s interest in the described property.

Numerous items must be attached to the affidavit.  These include:

•  A certified copy of the death certificate; :

•  Evidence that the decedent owned the property (e.g., stock certificate, bank passbook, storage receipt)

•  Reasonable proof of the identity of the persons signing the affidavit (e.g., notarized affidavit, driver’s license)

•  An inventory and appraisal of all real estate, if any, owned by the decedent in California

The affidavit must be presented to banks, brokerage firms, and other businesses or individuals holding the deceased’s assets in order to take possession of those assets.

3.  Change title to assets

If the deceased had assets with a formal title, such as real estate or a motor vehicle, the title must be changed into the inheritor’s name. Otherwise, the inheritor will not be able to sell or refinance these items. 

To transfer real estate, an affidavit must be filed within six months after the death with the Superior Court in the county where the deceased lived.  If the deceased was not a California resident, the affidavit may be filed in the county where the property is located. No hearing is set after this filing.

Call San Diego Law Firm for Help with a Small Estate

One of the great advantages of the small estates procedure is that attorneys’ fees are not set by law and are very reasonable. Although transferring a small estate is something you can handle yourself if you have time to fully research the law, it is generally not a good idea.  The terms are technical and the legal requirements must be followed to the letter, whether you fully understand them or not. It is very is easy to make mistakes and to overlook things that must be done, such as giving notice to creditors and filing a final income tax return for the deceased with payment of any taxes due from the deceased’s assets before they are distributed.

San Diego Law Firm has years of experience in handling all types of inheritance procedures.  When it comes to a small estate, our San Diego probate attorneys can make sure that every “i” is dotted and every “t” is crossed so that you can avoid probate and legally take title to assets and property you have inherited without worrying about later being held responsible for claims against them.

Our small estate fees are reasonable, and we provide considerate, caring customer service at all times.  We offer evening appointments so that you do not need to miss work.  Please call San Diego Law Firm at (619) 794-0243 to schedule a consultation. We look forward to helping you.

1.  A will.  This document says who will inherit your property and possessions, and who will be your minor children’s guardian if you and their other parent have both died. It can also provide that life insurance proceeds and other assets will be transferred into a uniform trust for minors, to be used for your children’s care and education, if both parents have died.  This is the single most important legal document your family needs, and it can be short and to the point if your situation is simple. 

2.  An advance health care directive. It outlines what medical procedures you want taken if you are too ill or injured to state your wishes yourself.

3.  A health care power of attorney.  This permits your spouse / domestic partner to authorize medical treatment and receive medical updates for you if you are unconscious or too injured or ill to communicate.

4.  A Durable Financial Power of Attorney.  This allows your spouse or domestic partner to handle your finances and property if you become incapacitated. It is not appropriate for every couple, and it should never be given casually to other members of your family.

5.  A method for your spouse / domestic partner to avoid probate:

      a.  A revocable living trust  – if you own a house, brokerage accounts, and other assets, this document puts them into the name of your living trust, with you named as the trustee who has complete power to buy, sell, and transfer these assets as you wish.  Your spouse / domestic partner, another trusted person, or a bank trust department is named as the substitute trustee who can take over if you die or become incapacitated.

      b.  If you have few or no assets, you can get by with other legal mechanisms which will not help if you become incapacitated, but will help your spouse / domestic partner avoid probate if you die.  You can deed your home to a “tenancy by the entirety” of yourself and your spouse or a “joint tenancy with right of survivorship” of yourself and your domestic partner, and that person will automatically inherit all your interest if you die.  Vehicle titles can be placed in joint tenancy, and bank and brokerage accounts can either be owned jointly, or be made “payable on death” to your spouse / domestic partner or other person you choose.

6.  A letter of instruction. This provides funeral and other related instructions for your survivors.  It should also contain essential information they will need, such as the location of your key papers, your bank and brokerage account information, the name of your attorneys, and a contact list.  If you have a pet, this letter should include care instructions and your veterinarian’s name.

7.   Safe document storage:  keep signed copies of the above items at your attorney’s office and at your home in a fireproof box to which your spouse or domestic partner also has a key.  In addition to the above documents, your fireproof box should include copies of other financial and legal documents, such as a pet trust, life insurance policies, deeds, car titles, military records, birth and marriage certificates, divorce decrees, insurance policies, and real estate deeds, along with information about your bank and other accounts, retirement plan, any prepaid funeral plan, and long-term debts such as mortgages and car loans. This information is likely to be needed by your attorney and your executor, who must distribute your property and notify your creditors after you die.  

Call San Diego Law Firm for Legal Documents to Protect Your Family’s Future

Providing for your family’s future is a gift of love to those closest to you.  Making sure you and your spouse have basic legal safeguards in place can give you great peace of mind and make sure your family is fully protected if anything happens to you.  

San Diego Law Firm’s experienced will, trust, and probate attorneys can help you create a good plan to protect your family if you are no longer here. We prepare each will and trust document to fit your exact situation and your wishes, and we can readily update any documents you already have.  We can provide flat-fee estimates for all of our will and trust services once we know what your situation requires.  Please call us for an appointment at (619) 794-0243.  We look forward to helping you.

The Estate of Stoker

The Estate of Stoker case involved a rogue will that Steven A. Stoker dictated to a friend.  It purported to give his estate (his personal property and real estate) to his two children. The original will, which had left everything to Stoker’s old girlfriend, had been destroyed. A recent Wall Street Journal article reported that the California Court of Appeal upheld Stoker’s rogue will despite its various spelling errors and his failure to observe typical legal requirements, such as having a witness sign the will at the time he signed it and declared it to be his will. Ultimately, the legal issue was whether the new, handwritten (“holographic”) will was valid and authentic. The friend who wrote down the will as Stoker dictated it to her did not sign the will as a witness, but testified that she saw Stoker sign it and also watched him urinate on the old will before throwing it into the fire. This case was the first of its kind to have the courts apply the “harmless error” rule to uphold a revised, but legally defective, will.

Harmless Error Rule

The California Probate Code, section 6110, contains the “harmless error” rule.  It says that if there is no evidence of fraud or duress (pressure) on the maker, a document or writing that updates or adds to an existing will can be treated as if it had been properly prepared, even if it does not meet all the formal legal requirements.  However, it must be proven by clear and convincing evidence that, when the maker signed the will, he or she intended the document or writing to be his or her will.

Effect of the Stoker Decision

For most people, this would seem like a great decision.  From the looks of it, people can now draft a document by hand, and as long as they intend for that document to be their one and only will, it is. The problem with this line of reasoning is that the courts need to apply the harmless error doctrine in court, and hold a trial if there is any disagreement between the persons affected, before deciding whether to uphold the new will. The court will also have to decide whether there is any evidence of fraud with respect to a rogue will that updates or adds to an earlier will. In short, if you write a rogue will, it will cost your heirs – the people you are leaving your possessions and property to – a lot more time and money arguing in a trial about whether the rogue will is valid than it would have cost you to avoid this problem by having a lawyer prepare one or two proper signed and witnessed legal documents.  In the Stoker case, the man’s children only inherited after paying substantial attorneys’ fees and enduring a long delay in probating their deceased father’s estate.

Call San Diego Law Firm for an Affordable New or Updated Will 

If you are considering changing or updating your will, or are interested in having an initial will drafted, contact one of our experienced will, trust, and probate attorneys at San Diego Law Firm.  We can draft an affordable will and legally valid living trust for you, along with other helpful legal documents that will protect you and your property.  These documents can also help your children and/or other heirs avoid the time and expense of probate.  Please call us at (619) 794-0243 to schedule an appointment today.  We look forward to helping you.

Requirements for Trustee Removal

California probate law says that a trustee can be removed for reasons specified in the trust document, or by the California Superior Court acting on its own, or by a “petition” (formal legal request) filed by a person named in the trust as a “beneficiary” to inherit some or all of the trust’s personal property, money, and/or real estate.   Some of the common reasons a trustee is removed are: 

●             The trustee is not following the exact directions of the trust;

●             The trustee is insolvent (broke) or otherwise unfit to administer the trust;

●             There is more than one trustee and they are not cooperating with each other, in a way that hurts the administration of the trust;

●             The trustee doesn’t do the administration in the way the law requires, or has refused to take on the job;

●             The trustee is being overpaid, when taking into account the value of the trust assets and the trustee’s responsibilities.

Trustee Responsibilities

California probate law lists things the trustee must do when managing and administering a trust. The trustee must give all the beneficiaries an annual accounting, which is a report on the assets, debts, and amounts received and spent by the trust.  The trustee must also give the beneficiaries a report with details of the terms of the trust and a report of the trustee’s actions in administering the trust.  The trustee must act prudently when investing living trust funds; they cannot be put into risky investments.

Often, a beneficiary decides to remove a trustee because the trustee is either not doing what the living trust document requires, or is not providing complete information to the beneficiary about the trust property, how trust property was invested, and/or how much and when the trustee was paid by the trust.  If the trustee and beneficiary are no longer communicating well, or are not in agreement on how the trust property should be administered, the next step for the beneficiary is to seek legal advice and help from an experienced probate attorney.

Petition for Removal

If the trustee and a beneficiary cannot agree on how the trust is to be managed and administered, that beneficiary can ask the court to remove the trustee, which means order the trustee to give up all control of the trust property.  This is done by hiring an experienced probate attorney to file a court petition requesting that the trustee removed.  The petition is accompanied by a signed declaration from the beneficiary stating the facts showing the reasons why the trustee should be removed. If the court grants the petition, it will remove the trustee and appoint another person as the new trustee.

California probate law concerning trustee removal is complicated and not easy to understand. If you are a beneficiary of a trust, and are concerned that the trustee may be mismanaging trust property, our experienced will, trust, and probate attorneys can advise you on your options.  If you decide the trustee should be removed, we can handle all the court paperwork and hearings.  Please contact San Diego Law Firm today at (619) 794-0243 to schedule an appointment.  We look forward to helping you.

Some people believe that a will or trust is unnecessary if their property automatically passes to their spouse and children under the law.  However, a will and living trust are especially important for people who are married and those who have children to ensure the simple transfer of property, save on probate fees, and help safeguard a family’s financial future. 

Where a person dies without an estate plan, his or her real estate and personal property will go through probate.  Probate is a legal process where a deceased person’s assets are inventoried and distributed by the court to the heirs.  It is a costly and complicated legal process which can last anywhere from six months to two years.   Probate can be avoided by having an experienced attorney prepare a living trust and will.  A living trust saves the cost and time of probate and provides you and your family with peace of mind, and a will provides for any property that is acquired later and not put into the living trust.

The attorneys at San Diego Law Firm create customized wills and trusts, along with other “estate planning” documents, to fits the diverse needs of families throughout California.  They understand how to protect your wishes, ensure your privacy, and reduce or eliminate the death tax.  Avoiding probate costs and taxes can wave your family a considerable amount of money.  This means that more of your assets can be passed on to your family.  Please call 619-794-0243 to schedule a consultation to learn how a will, living trust, and related documents can help protect your assets and ensure your family’s financial well-being.

Dying Without a Valid Will (Intestacy)                                 

If you don’t leave behind any instructions for how you want your property divided (such as with a valid will or living trust), then California law steps in so that the probate court can distribute your property to your heirs.  A person who dies without a valid will is said to have died “intestate.”  In these situations, California’s intestacy laws apply.  These laws decide which family members will inherit by creating a hierarchy.  Sometimes things get more complicated, but here are the basics:

      ●    If You’re Survived by a Spouse or Domestic Partner

Your surviving spouse or domestic partner will receive your full share of “community property” (your shared marital property as determined by California’s community property laws).  You might also have your own “separate property” (usually this is property you owned before marriage or inherited while married).  Assuming that your separate property never turned into community property, then your spouse or domestic partner will get a share of those assets.  He or she will either get all, half, or a third of your separate property depending on whether you have certain relatives.  Those relatives (usually children) would receive the rest. 

      ●    If There’s No Spouse or Domestic Partner

If you had children (or a grandchild from a child who died), then they’ll inherit your estate.  If you didn’t have any children, then the hierarchy goes from parents, to siblings, to grandparents, to aunts and uncles, to cousins, and then more distant family members.  Keep in mind that once there’s someone eligible to inherit, the probate court won’t give property to anyone who’s further down on the hierarchy.  For example, if you have children, your parents will not inherit anything from you under the intestacy system.

What the Intestacy Rules Leave Out

When there’s no will or trust, the rules for distributing your property ignore many things that you probably think are very important.  For example:

      ●    Strained Family Relationships - Maybe someone who you wouldn’t want to inherit from you will under California’s intestacy rules.

      ●    Protecting Adult Children (From Themselves) - You may have a child who’s over 18, but who’s likely to seriously mismanage his or her inheritance, or lose it to creditors.  To avoid this situation, you’d probably want to establish a trust that can include safeguards.

      ●    Some People & Organizations Can Never Inherit From You - Even if you’re in a long-term relationship, your significant other won’t be eligible to inherit from you if you didn’t marry or enter into a domestic partnership.  Your friends, charities, and other organizations that you may want to leave a gift for also won’t receive anything. 

      ●    Leaving Loved Ones Out, Even If They’re Related - Your family member may not get to share in the inheritance, even if you would have wanted them to.  California’s intestacy system is a hierarchy.  Certain relatives (like a spouse or children) are higher up on the hierarchy than others (like parents, aunts, uncles, or cousins).  Under this system, your property is meant to be inherited by the relatives who are as high up on the hierarchy as possible.  As soon as there’s someone who can inherit, relatives who are lower on the list are shut out.

Create Your Own Plan Instead

If you create a will or trust, then you can usually decide who gets what and how.  You’ll also be able to control how much they get.  For example, even if you want your children to receive most of your property, you can still make gifts to a niece, friend, or others. 

After you’ve made your will and trust, watch out for pitfalls that can lead to intestacy (or partial intestacy).  In part, this means making sure all your property is covered by a valid estate plan.  If you get new assets after creating your will and living trust, then let us know.  For the same reason, any changes to your will or living trust need to be made carefully. 

We’ll advise you on your best options, so you can learn about the benefits of estate planning.  Remember, avoiding probate is not your only goal.  Estate planning is about taking control, while also finding the best way to minimize any taxes.  Get essential help with your will and living trust by contacting San Diego Law Firm’s experienced estate planning attorneys at (619) 794-0243.

Your choice of guardian is one of the most important decisions you’ll make in your will, so how do you decide?  In “How to Choose a Guardian,” mother of three Denise Oliveri proposes that you figure this out by answering five questions.  To decide who will be right for the job, she suggests you evaluate age and health concerns, moral and educational values, financial ability to care for a child, and whether your child would have to move away.

Property & Money Matters

Splitting up responsibilities – Sometimes you’ll find it’s best to name different people to handle the parenting and the finances.  This will depend on the personalities, schedules, and skills of those who you would want to care for your child.  In this case, you can name a “guardian of the person” to raise your child, and a “guardian of the estate” to manage money and assets left behind for your child. 

Decide how the inheritance should be handled – Remember that you may only want certain property to be gifted under your will if your chosen guardian accepts the appointment in court.  That way, you can make sure these resources are available for your kids even if the person you nominated turns down the guardianship.  We’ll ensure you take this and similar considerations into account so that your will matches your wishes.  Another option is to create a living trust that names a trustee to manage finances.  This can be a better option for you and your kids, and give you more control over how and when money will be spent. 

Making sure your wishes are carried out

Choose alternates – In the event the guardianship becomes necessary later on, what happens if the person you choose can’t act as guardian any more?  You can plan for this possibility by naming alternate guardians.  This gives you greater security that your child or children will be cared for by someone you’ve chosen.

Think your choices through in your will – If the person you’ve chosen is comfortable with taking on the role of guardian and accepts, then your next step will be to include your guardianship decisions in your will and the other parent’s will.  If you’ve chosen a couple to act as co-guardians, we’ll prepare your will to make sure it accurately reflects your intentions.  For example, if the couple later divorces or one spouse dies, will you still want either spouse to be your child’s guardian?

Don’t leave it all for the judge to decide

As long as you’ve nominated your guardian in a valid will, then the chances are the court will appoint the person you’ve chosen as guardian.  The court will only deny the appointment if it’s necessary to protect your child’s best interests.  You may recall Michael Jackson’s mother was approved as guardian to his three children, as reported by CNN, despite concerns of her age.

If you didn’t name a guardian in your will, then the decision will be left completely in the judge’s hands.  The court will try to make the best decision for your child, but the appointed guardian may be different from who you would have wanted.  Remember, it’s not enough to just come to an informal agreement about guardianship with your family and friends.  Your nomination has to be properly made in your will. 

Our experienced wills, trusts, and probate attorneys are here to help you understand guardianships and its responsibilities.  We’ll also prepare a will and living trust that’s comprehensive enough to truly carry out your goals.  Don’t miss a chance to help ensure your children’s security and well-being will be protected.  Contact San Diego Law Firm at (619) 794-0243.

What are valid reasons for challenging a will or trust?  Hollywood’s favorite example is the deathbed will, where – in a dramatic portrayal – the will is signed just moments before passing away, disinheriting everyone except for the person who callously pressured the testator into signing.  If there were a will contest here, what would the empty handed family members allege as grounds for the challenge?   One issue is capacity, because the deceased may not have had the level of capacity legally needed to change or create the will if the testator’s mental competence had grown too weak in his or her final moments.  Not only that, but the benefited person may have exercised duress or undue influence over the testator.  Other common reasons to contest a will include forgery, fraud, the existence of a more recent will, omitted children or spouses, and errors in executing the will.  If under the facts the legal requirements are met for any of these grounds, then the will or part of it is invalidated and property will instead be distributed according to California’s laws on inheritance, or possibly according to another will or trust.

The new California law on no contest clauses will be applied starting January 1, 2010, but it will affect wills that became irrevocable as of January 1, 2001 (for example, if a person dies on or after this date, the will becomes irrevocable at that point).  The law lists three categories of actions that are considered “will contests,” and anything else will not trigger the no contest clause and its threat of forfeiture.  If the challenger wins the will contest, then the no contest provision has no consequence because the will is ignored.  If the challenger loses, then typically the no contest clause will be enforced unless there was “probable cause” to dispute the will. 

It may be time to create or update your will and living trust to reflect this new law as well as recent case law.  We’ll also plan on the most effective way to include a no contest clause when you make amendments to these documents, and discuss the pros and cons of these clauses so you can decide on whether to include a no contest clause in your will or trust.  If you think you’ll be involved in a will contest, we’ll assess whether you’re a proper party to bring the action, and if you have possible grounds for a contest.  Whenever possible we’ll seek resolution without resorting to litigation.  Also keep in mind that a will contest must be brought within certain time limits so act soon.  Contact San Diego Law Firm’s experienced attorneys at (619) 794-0243 for help with any aspect of the probate and inheritance process.

To make or change a will, California law sets a threshold for mental capacity, requiring you to be of “sound mind.”  The level of capacity required here is different than it is for other legal matters, and generally means that you understand who your family is, what property you own, and recognize that the actions you’re taking are to create or change your will.  A person can be considered to lack capacity for many different reasons, including mental disorders if it affected the individual’s disposition of property, or even for temporary reasons like intoxication.  Even if a person has displayed a few isolated acts of questionable mental capacity, this doesn’t necessarily mean that at the time of making or changing the will, a person was of unsound mind, which is what’s required to prove a will is invalid on this basis.  That’s why the defense in the Brooke Astor case took great care in trying to establish that even though the prosecution’s witnesses testified to incidents demonstrating Astor’s possibly diminished mental capacity, at the moments at issue in the case, Astor knew exactly what she was doing. 

You may not find the need to change your will 38 times as did Brooke Astor, but it’s essential to have an up-to-date estate plan.  One of the main reasons behind having a will and living trust is to provide for your family according to your wishes when you’re gone.  Your personal and financial situation is bound to change, and so these documents need to be reviewed regularly to account for these changes.  Here are a few events or reasons that often trigger the need to update your will or living trust:

- Your marital status has changed, or you are unmarried but have a partner who you want to provide for

- You’ve recently moved to California, but had created a will or trust under another state’s law

- There’s been a significant change in your financial situation

- You no longer own assets specifically gifted in your will or trust

- You’ve had a child

- The person you elected to serve as your estate’s representative is no longer available

- You’ve decided to change gifts you made in a prior will or trust, or want to leave property to additional people

- There have been changes in income, estate, or gift tax laws affecting your plan

To amend your will, please Do Not simply take a pen to it and cross out what you want to change, while writing in new provisions in the margins.  If you do, you may be creating a legal nightmare later on for your kids or others who stand to inherit from you.  Many times, this can revoke what you’ve crossed out, yet what you’ve added in may not be a valid amendment, which could open the door to arguments during probate to try to at least bring back what you crossed out.  Valid changes to your will have to be written and executed just as your original will was.  If you need to make substantial changes to your will, then it may be easier to cancel your existing will through proper revocation methods and create a new one.  Make sure your will and living trust haven’t lost their value by becoming out-of-date.  Contact San Diego Law Firm’s wills and trusts attorneys at (619) 794-0243.

Recently, much has been made about the many deals struck by the executors of Michael Jackson’s estate.  The Los Angeles Times reports on agreements for a movie, television special, tribute concert, merchandising, a high end clothing line, “digital apparel,” and a traveling memorabilia exhibition.  Just as they should have, the executors (who are also the trustees of Jackson’s trust), worked fast to secure these deals while demand soared high for anything related to the King of Pop.  This is because personal representatives (and trustees) have the duty to invest and manage assets.  For example, when there’s a large amount of cash left behind, the executor may need to invest the money as permitted by the will and California law to prevent losing income that can be earned for the estate.  Otherwise, the executor could be liable for the loss.                                           

Besides investing money, personal representatives also need to make the most out of the assets already in the estate, sometimes this requires selling property or renting out empty real estate.  Executors and administrators also need to find and collect all of the deceased’s assets, such as personal items, life insurance, partnership interests, and bank accounts.  Known creditors must be given notice and legitimate debts need to be paid off, so you have to make sure the estate will have enough money to pay for bills, costs, and expenses.  Federal and California taxes must be paid, and as the personal representative, you’re potentially liable for the value of distributed assets if there’s a deficiency.  Don’t assume that only fraudulent transactions and lying will get a personal representative into trouble, because at times mistakes can also lead to personal liability.

The bottom line is that you are a fiduciary, and everything a personal representative does needs to be in the best interest of the estate, which also means you have to be careful not to favor individual beneficiaries.  As assets are managed and distributed, we’ll consult with you about investments, handle title transfers, prepare and file required documents, work to resolve disputes, advise you on potential legal issues, and appear on your behalf in court.  Make sure you’re handling your responsibilities properly, speak with San Diego Law Firm’s knowledgeable probate attorneys at (619) 794-0243.