California Estate
& Probate Lawyers

This is a legal document that takes effect upon death and is used as an instrument to direct the disposition of your property upon death. A Will also serves the critical function of naming guardians for your minor children. In California, wills trigger probate unless the gross value of your "estate" is less than $166,250.00. When used in conjunction with a living trust, a will (then known as a "pour over will") serves to leave assets not otherwise titled in your trust to your trust to determine the disposition of your property upon death.

A Will remains legally valid unless revoked by its creator.

Your Will should be amended when your situation changes - a birth or death in the family, a need to change your executors, or to change the guardians for minor children are common examples of circumstances triggering the need to amend Wills.

A California Probate Court may decide guardianship of your new child. If you get married, the California Probate Code would likely modify your plan of distribution to account for the community property rights of your spouse. It is critical that your Will is updated to reflect the changes in your life. Otherwise, your wishes may not be followed.

There is no key required to gain access to the courthouse. In today's litigious society, there is absolutely no guarantee that your Will or any other estate planning document that you prepare will not be challenged. Your estate is liable for the legal expenses necessary to defend your Will. If you think it is a possibility that your Will may be contested, please let your attorney know. There are several defense mechanisms that can be added to your Will and other estate planning documents to eliminate or minimize this risk.

Accounts that have beneficiary designations will pass outside of the Probate Court system. These assets will be transferred to the beneficiaries listed. It is critical that you check your beneficiary designations regularly to ensure that these assets will be transferred to the people that you intend. Assets held in Joint Tenancy with another individual will be transferred automatically to that person upon your death, without going through a probate court. However, this can be a very risky and ineffective estate planning device. Please see our discussion "Is joint tenancy an acceptable substitution for a Will or a good way to avoid probate?"

The Probate Court will decide who will administer your estate and who will become guardian of your minor children. The California Probate Code dictates who gets your money and your belongings.

An inappropriate person may be appointed by the court to administer your estate.
An inappropriate guardian may be appointed by the court.
Children will receive their share when they become "adults", at the age of 18!
The beneficiaries may not be those you would have selected if you had been prepared and had completed your own estate plan.

Handwritten Wills are easily challenged because of unclear (non-legal) language and often lack witnesses to prove the person writing the Will was legally competent.

Lawsuits challenging this type of Will are expensive and usually result in a compromise, with beneficiaries you wanted to disinherit receiving part of your estate.

If a couple is married or part of a domestic partnership, holding assets in joint tenancy is acceptable, but far from ideal. Married couples living in a community property state (such as California) can obtain a "double step-up in basis" (HUGE Tax Benefit), but most people fail to take advantage of this tremendous tax benefit by keeping assets in joint tenancy.

However, adding anyone else (besides your spouse or domestic partner) as a joint tenant can create other problems, such as:
The new joint owner could misappropriate the asset. After all, you gave it to them.
Did you file a gift tax return when you added his/her name to your asset? Adding a name to an asset is a gift that could subject you to gift tax liability and potentially cause adverse consequences with respect to the Federal Estate Tax.
Do you really want to expose your assets to someone else's problems?
If the joint tenant gets involved in a divorce, bankruptcy or lawsuit, your assets may be tied up in a long legal battle and ultimately your assets could be encumbered, compromised or lost.
Joint tenancy means "automatic right of survivorship" so the surviving joint tenant will get the entire asset, regardless of what your Will or Trust says.

A Will does not avoid probate if the gross value of the assets in your estate exceeds $166.250.00 at your death. If your estate is less than $166,250.00, a living trust may not be required for you and your family. You should consider our "Will Package" as a planning option.

The cost of probate will take a large bite out of your estate. California Probate Code Section 10810 sets the maximum statutory fees that attorneys can charge for a probate. Higher fees can be ordered by a court for more complex cases. The fees are 4% of the first $100,000 of the estate, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, and 0.5% of the next $15,000,000. For estates larger than $25,000,000, the court will use its discretion to determine the fee for the amount that is greater than $25,000,000. The fees listed below are the statutory fees used to compensate attorneys and executors in probate cases for various sized estates. If both the attorney and the executor receive a fee (the most common occurrence), the amount paid will be double that shown below.

Estates are appraised by probate referees who determine the fair market value of the assets. The fair market value does not deduct for mortgages or other debt, which can result in an appraisal of the property that is higher than the equity that the deceased person owned in the property. Probate referees are appointed by the state controller's office and they receive a fee based on 0.1 % of the assets appraised.

In probates that are complicated by lawsuits or tax problems, the attorney and executor can ask the judge to approve fees that are higher than those set by state law. In addition to the "statutory" fees, there are costs for court filing fees, appraisal fees, publication costs, and miscellaneous fees charged by the county. A typical estate might incur $1,000 to 2,000 in court costs and other mandated fees.

Following are the benefits of a Living Trust.

A Living Trust:
Avoids probate, thereby avoiding delay, expense and the public nature of this formal proceeding of the Superior Court.
Avoids the need for a conservatorship if you become incompetent or incapacitated.
Offers potential tax savings.
Can continue for the benefit of:
Your loved ones;
Minor children and elderly dependent parents; and,
Adult children with drug or alcohol problems, mental, physical, or educational special needs, or developmentally disadvantaged adult children on SSI.

Following are the disadvantages of a Living Trust.

Living Trusts usually:
Cost more to prepare and fund than an estate plan involving just a Will.
Transferring assets to the Trust involves costs and paperwork (recording deeds and the like) not required for less elaborate estate plans, such as a Will.
Administration of an Exemption Trust or Credit Shelter Trust (defined below) can involve additional effort for the surviving spouse.
Refinancing real property that is owned by a Trust may require removing the property from the Trust before the refinancing, and then titling it in the name of the Trust after the refinancing. (Not all lenders require that property be removed from the Trust in order to refinance.)

Yes, for two very important reasons:
As a safety net to "pour" assets into your Trust in case you have forgotten to put an asset into it.
To provide for the care of your minor children or other dependents.

See Durable Power of Attorney Section.

See Advance Health Care Directive Section.

This document allows you to designate someone as your agent or attorney - in-fact to make financial decisions regarding your property and assets. It gives them the power to sign your name without the need of incurring the cost and frustration of petitioning the probate court to have them appointed your financial conservator.

There are two types of Durable Power of Attorney for Financial Purposes. An "immediate" power of attorney takes effect as soon as you sign it and continues in existence until you revoke it. A "springing" power attorney takes effect only after you become incapable of managing your own affairs as certified by your treating physicians.

All Durable Power of Attorney for Financial Purposes are revoked by operation of law when you die. Therefore, they cannot assist with any post-death issues. Your attorney will discuss with you which type of power of attorney is best suited for you.

Anyone over the age of 18 years old can be designated as your attorney-in-fact. However, this is a very powerful document and we highly recommend that you choose a loved one you trust completely.