Our office will be closed for two weeks during the holiday season. We apologize for any inconvenience this may cause…but we will be back in the office on Tuesday, January 07, 2020. You can always call and leave a message and we will get back to you then.
The holiday season is coming up, and I wanted to let you know when the office will be closed so that we can all plan accordingly.
October: Normal business hours and days.
November: We will be closed from Friday the 22nd through December 02, opening again on Tuesday, December 03.
December: We will be closed Friday the 20th through Wednesday, January 01, returning on Thursday, January 02, 2020.
Conservatorship is a court process wherein someone is granted permission to take care of another adult. This can be in the form of a limited conservatorship, which covers those persons over the age of 18, but who have mental disabilities that do not allow them to sign paperwork, or it could be a general conservatorship which covers adults who have lost the capacity to care for themselves either physically or financially.
Conservatorships are costly and time consuming. And of course, it means the court is in your family business, watching everything that happens to you. There are the initial hearings and paperwork, and then there are yearly accountings if your estate is involved. A bond is required for the person who is asking to be appointed to care for you.
How Can a Conservatorship Be Avoided?
Avoiding a conservatorship is fairly easy. A person needs to correctly fill out a Durable Power of Attorney form and an Advanced Healthcare form. I do not provide a link to the many free forms available online because I don’t want to be biased. In your searching, just make sure it is written for California. (Please understand this does not apply to a limited conservatorship. You must have capacity in order to sign documents. That is a complicated area of law. Please consult an attorney on whether or not a limited conservatorship might be right in your situation.)
Also, if you fill these forms out incorrectly, you will still be looking at the inside of a courtroom to fix them later. When you do anything yourself, whether it is fixing a leaky sink or your own legal work, it is important to know what you are doing and to do it right the first time. Doing it incorrectly could lead to a more expensive and time consuming problem later.
My office is located at 5104 Lake Isabella Blvd, Suite B., Lake Isabella, CA. I serve the Kern River Valley area. I also serve Ridgecrest, CA on a limited basis, but that availability will open more in January/February 2020. I can only meet by appointments at this time…please no drop ins as my current office does not have a waiting area.
At this time, I am closed on Mondays, and Fridays are a limited work day due parts of my job requiring me to go to Bakersfield to drop off and pick up court and recorder’s office related paperwork.
- someone you love has passed away and their real property is sitting there, unable to be sold, unable to be transfered.
- someone you love has passed away and they have assets in their bank accounts, or stock accounts, and they won’t release the funds.
What You Need to Know First
There are TWO things you need to do first. Now that I say that, let’s make it THREE things. These steps aren’t very hard.
1.) Make a list of the property left behind.
2.) Determine if any of the property on the list transfers straight to anyone else because they are a named beneficiary, or joint owner. These things do not need probate at all.
3.) Look at what is left on the list. These are the things that might need probate.
- If there is an account or personal property that is worth less than $166,250.00, then a small estate affidavit can be used. (Probate Code 13100) You can find a sample form HERE for free.
- If there is personal property worth more than $166,250.00, then it has to go through probate court.
- If there is real property at all…it will require some kind of probate. If the property is worth $55,425 or less, a simplified process can be done. The filing fee is $45 with the court. The form for this can be found HERE. Please note, you have to have the property appraised by the probate referee first. In Kern County, his name is Michael Burger.
- If there is real property that is worth between $55,425-$166,250.00, another “simplified” process can be used. This one requires a hearing, and the filing fee is $435. You can find the paperwork for this HERE.
- If there is real property that is worth more than $166,250.00…then you must go through a full probate. That is the most complex of the three processes.
Also, please keep in mind, that in some cases, even if the house is worth less than $166,250 and it qualifies for a more simplified process, the situation may require the oversight of the court for the protection of the heirs. Also, while there are “simplified” processes, these are not always easy. Take a look at your options yourself, first. You may decide to call an attorney to handle the paperwork for you.
I am happy to help clients in the Kern Valley, Ridgecrest, and Bakersfield areas handle their non-litigation probate matters. My office is located in Lake Isabella, but I work with clients from all over, utilizing technology to get things done as efficiently as possible.
Note: I receive no money, or any other type of gift from posting about this book.
I have a book recommendation for ANYONE who is wondering about where to begin for their personal estate planning, or for a loved ones future plans.
Earlier this year, I was asked to review, preview, and give feedback on a book written by a fellow attorney. Catherine Hodder, Esq. reached out to me and interviewed me for her website back in April/May of 2017. You can read that HERE. I have never met with Catherine in person, or even talked to her over the phone. But, I like her. She’s smart. I know this because she wrote a very informative, accurate, and easy to read book about a topic that most people don’t understand. She did an excellent job of breaking down the “legal stuff” and wrote a book about Estate Planning that 1.) does not put you to sleep; 2.) is written for everyday people, not lawyers; and 3.) is extremely well written, and targets those people who have aging parents and growing kids.
“Estate Planning for the Sandwich Generation: How to Help Your Parents and Protect Your Kids” is a book I wish I had had the time to write. But, now I don’t have to worry about writing a book because Catherine captured everything I wish my current and future clients knew.
If you are interested in a copy of the book, you can find it on Amazon, or by clicking the following link: Estate Planning for the Sandwich Generation.
Also, I received a shout out in the Acknowledgments.
I highly recommend this book to anyone who is thinking about wills, revocable living trusts, powers of attorneys, advanced healthcare directives, etc.
There is a lot of misinformation about qualifying for Medi-Cal for long term care help. Many people hear, “You can only have $2000. Get rid of the rest.”
Also, many people think you can hide assets from Medi-Cal. It has been my personal experience that they know everything. You can’t hide your cash or your financial history from them.
The truth is, spending down your assets is not that simple. Medi-Cal categorizes your assets into countable and non-countable assets. Non-countable assets are sometimes called exempt assets.
For example, you can own a home and a car, and still qualify for Medi-Cal. The principle balance on your IRA is not countable. (But the income is.)
There are too many variables for each individual’s situation to be able to give advice here, but below is a short list of facts, and a link to a three page fact sheet that I’ve put together to give you a foundational knowledge.
1.) Currently, there is a 30 month look back period. This means that even if you use a valid form of transfer (proper gifting, or an irrevocable trust), Medi-Cal will look back for 30 months and see what you did. If you wait for month 31+ to apply for Medi-Cal, this will be no big deal. But if you apply before the look back period is up, you will not qualify AND be “grounded” for a period of time. WHY? Medi-Cal is the state and federal government, which is taxpayer money, and if you have the cash assets, their thinking is, “Why does the taxpayer need to pay for your care if you can do some of it yourself?” It is assumed that the California legislature will finish passing regulations in 2019 that makes this look back period 60 months (5 years). Planning ahead is a must here.
2.) After you pass away, if your home is in a revocable living trust, Medi-Cal will not seek repayment via your home. That goes for any other asset you have that is not part of your probate estate. (Yet another good reason to form a trust if you own real property.)
3.) If you are married and your spouse needs help with long term care, your local Medi-Cal representative can help you apply. You will not be left in the cold.
Click the link above to download a fact sheet for your convenience.
Frequently Asked Question:
How much will an Estate Plan cost?
Answer: That depends on what you need. I don’t hide my fees…you can find them under the “services” tab on my Facebook page, or under my “fees” page on this website. A full estate plan in California should typically cost you anywhere between $2500-$3500+ to be completed by an attorney. Of course, this fee isn’t just for the printed words on paper. This fee should include access to your attorney for all your questions, a productive initial meeting where not only is important information gathered, but also your attorney gets to know you and your family situation, AND you should leave this meeting feeling confident with your choices and moving forward. You should leave knowing there will be no hidden fees or surprises later. Your situation might be a little different than most and it may cost you slightly less or slightly more. No matter what it costs you, it will be far less than the average cost of probate for your family later. You could be saving your family thousands of dollars and years spent in court by planning ahead.
As a new trustee, you probably have a lot of questions about what to do first. Below are 9 steps to take in administering the trust you are now responsible for.
If the trust was set up with your spouse or registered domestic partner, when the first person passes, usually all that is required is to file an “Affidavit of Death of Trustee” with every county in which property is held. The reason you do this is to put the world on notice that a prior signer of a deed has passed away and can no longer sign for themselves. If the remaining spouse wishes to sell the home or a property, they can now sign by themselves. The explanation for why the other person can’t sign is in the “Affidavit of Death of Trustee.”
When the Original Settlors/Trustees Pass Away
If you are the new trustee of a revocable living trust, there are many things that you may have to do in order to carry out trust administration properly. (SETTLORS= the people who “set up” the trust. When that person has passed, or when both people have passed, the SUCCESSOR TRUSTEE steps into their shoes to follow their instructions and manage their assets.)
1.) Know that the trust is now irrevocable. This means you cannot change the terms of the trust. At all. (Unless you petition the court. And now you are in court…the very thing the original trustees wanted to avoid. Sometimes you can’t help it, especially if the trust was a bad one to start with. Just know you can’t go into the trust and decide to change beneficiaries or shares they receive on your own.)
Having said that, you need to read the trust. If there is something you do not understand, it would be wise to consult with an attorney. You do NOT have to consult with the same attorney who drafted the trust. If they send you a letter telling them that you do…they aren’t being honest. Of course, you CAN use the same attorney, especially if you like them and trust them.
2.) Send California Probate Code 16061.7 NOTICE to all heirs at law and everybody named in the trust.
3.) You will need to lodge the will with the probate court. This is not a difficult process. A proper estate plan will have a “pour over” will. Take it to the court and lodge it.
4.) Gather asset information and prepare an inventory.
5.) You will need to get a EIN/TIN from the IRS. You can do this online. Now that the original trustees have passed, the trust needs a government ID number. This number will allow you to open a bank account for the trust…and if there is already a trust bank account, the bank will want this new number.
6.) Related to above: you will have to file a 1041 Federal Tax return. This is the income tax return for the estate…if the estate makes $600 or more, you must file this return. IRS INFO HERE
The estate tax threshold is fairly high, and only those estates worth $5.49million+ for each individual will need to pay. (You still need to file even if you don’t owe. Talk to your favorite CPA about this. This is separate from “income” taxes.)
7.) Also related to #5: open up a trust bank account. This is where cash and proceeds need to go. This makes it easy to account to the beneficiaries (via bank statements), make deposits, and also make distributions.
8.) Deal with creditors: gather creditor information and prepare a list for notice. Open probate Court file to accept creditor claims. Publish in local newspaper to notify potential creditors. Send notice to potential creditors including Medi-Cal (the Department of Health Services).
9.) File an “Affidavit of Death of Trustee” with every county that the Settlor owned property. This puts everyone on notice that that person can no longer sign future deeds. A Change of Ownership report also needs to be filed with your county assessor’s office. SAMPLE AFFIDAVIT OF DEATH HERE
Is there anything else?
Although there are numerous steps in administering a trust, it is far easier and more cost efficient than having to go through the probate process. Your particular situation might require more steps than the introductory ones listed above. If you are unsure about your situation, please call an attorney who regularly works in trust administration to guide you through the process.
A well prepared estate plan will help the successor trustee in their duties as they take over the trust. If you are a new trustee, you may want to consult an attorney on the right path to take for your situation. If you are looking for an estate planning attorney, find one that will keep your loved ones in mind as the end result of the process. After all, your trust is meant to help your family, not make things more complicated in a time of grief.
Is it okay to add one of my kids’ names to my bank account or property to avoid probate and make it easier on my family?
The answer depends upon your situation. It is frustrating that I cannot give you legal advice on this topic, but truly, without knowing your situation, I can give zero advice.
But I can share this information, and maybe you can guess which way I would lean, regardless of your circumstances.
You can add another person to your bank account or deed on your property in order to try and avoid probate. When you add another person, this person become a joint owner of the account. For example, you can add your son to your checking account so that he can write checks for you if you need him to, or deposit funds without a fuss from the bank, etc. When you pass away, he has access to the account immediately, making the transition seamless on his part. That can be considered the upside to adding another name on an account or deed. (You can add someone to your property as well.)
When you add another person to your account or property, they become a joint owner. Legally, you have equal rights to the account or property. Let’s say you add your son John to your checking account. You have a retirement check that is deposited every month, and you use this account for everything: a little savings, and paying the bills. If John gets in any kind of financial trouble, your account is now half his, and your money can be taken. The same goes if you add John to your deed. Your property can have liens put upon it against John. You also cannot just take John off of the account or property…he has to consent to it.
Many people have added children to their accounts or property without incident. A lot of the time it can work. However, a case recently came out that reminds us that things can get really ugly. Let me tell you a story about Betty, Kelli, and Tom.
Betty has two children: Kelli and Tom. She set up a trust, but be also had a separate checking account at Wells Fargo. She put Kelli’s name on the account. When Betty passed away, Tom insisted that the account was meant to go into the trust and be divided between he and Kelli. Kelli disagreed and said that the account was hers because Mom put her name on the account. A court battle ensued: brother and against sister, and vice versa.
What did Betty actually want? It didn’t matter and couldn’t be proven, so the law came into play. Probate Code section 5302 states that there is a presumption that joint property is meant to be just that. You need clear and convincing evidence to overcome the presumption of survivorship laws that govern joint accounts. (You can read the decision HERE.)
If you add a child on a joint account, and tell them to split the money with others after you pass, they do not have any obligation to do so. They can claim it as their own. And it is completely legal.
When you add someone to your account or deed as a joint owner to make things easier after your passing, you may be very well on your way to opening the door to liability and fraud while you are alive, and greedy behavior after your death. Your efforts to avoid your children going to probate court may very well land them there in a protracted battle anyways.
A solid plan that is well executed is your safest bet to both protect your assets while you are living, and to help avoid family battles after you are no longer here to look after your family. Consider what a revocable living trust can do for you.