Frequently Asked Questions
What is the purpose of the Probate Court?
The purpose of the probate court is to administer the estates of people who die leaving only a Will or nothing whatsoever as their final estate plan. It is where people dispute, question, and confirm matters related to both Wills and living Trusts; and it is a public process. The court is presided over by a single judge who has the final say as to how a matter will be resolved regardless of the facts, the evidence, or the law. Contesting a bad ruling in Probate court is very costly, time consuming and emotionally draining which is why you want to stay out of court if you can. The probate of an estate can resurface years later as new issues crop up which is why the cost of probate can also be potentially unlimited.
What is a Will?
A Will is an estate plan that designates where an individual (the Testator) wants his or her things to go after they die. All Wills are administered by the Probate court as long as the Will gives anything to anyone and the value of the assets are over a certain threshold amount calling for a formal probate. Only Pour-Over Wills are not administered by the Probate court because they “pour” or give everything that the Testator has left out of their living Trust to their living Trust (for the purpose of avoiding having to get the probate court involved).
Who should do a Will as their primary estate planning vehicle?
Generally speaking, if your estate is small enough [meaning that everything that you own is valued at less than a certain statutory amount (and in California that is $150,000.00)] then a Will as your primary estate plan should be sufficient because your estate is too small to require a formal probate proceeding. You should especially do a Will if you don’t want the state’s plan for where your things should go (i.e., to your immediate heirs).
What is a Living Trust?
A living Trust is an estate plan that designates where an individual (the Settlor) wants his or her things to go after they die. An expertly drafted and properly funded living Trust estate plan will avoid having to have it administered in the Probate court. If your estate is large enough [meaning that everything that you own is valued at greater than a certain statutory amount (and in California that is $150,000.00] then you will want a living Trust as your primary estate planning vehicle so you can avoid probate, keep the costs and fees of administration to a minimum and keep your affairs private.
Who should do a Living Trust as their primary estate planning vehicle?
Anyone who has assets worth protecting from the probate process and the discretionary decision making consequences of a single probate court judge should consider a living Trust as their primary estate planning vehicle. If keeping you and your things out of the control of the court is your intent, then an expertly prepared living Trust estate plan is the place to start.
What is a Durable Power of Attorney for Healthcare (a/k/a: Advance Healthcare Directive)?
An Advance Healthcare Directive (also called a Healthcare Proxy or a Power of Attorney for Healthcare Decisions) is a legal document that identifies you and specifies that if in the event you are no longer deemed legally competent (by at least one or two qualified mental health doctors) to be able to make your own healthcare decisions, then the agent (person) or co-agents (people) that you had picked to act for you will be able to make
healthcare decisions for you during your time of incapacity.
What is a Durable Power of Attorney for Finances (a/k/a: Advance Financial Directive)?
A Power of Attorney for Finances (or an Advance Financial Directive) is a legal document that identifies you and specifies that if in the event you are no longer deemed legally competent (by at least one or two qualified mental health practitioners), then the agent (person) or co-agents (people) that you picked (when you were competent) to act for
you will be able to make financial decisions for you during your period of incapacity.
What Is a Conservatorship?
A conservatorship is an American legal concept whereby someone (who is called a conservator) is appointed by a local probate court judge to be the guardian and protector of an adult person whom the court has deemed needs the protection of constant supervision. According to the court, this dependent adult is no longer able to care for himself or herself (or his or her own person) and/or no longer able manage his or her own finances (their own estate).
Why is effective Estate Planning so critically important?
Contrary to what a lot of people believe, bulletproof estate planning, as I like to call it, is one of the most important things that you can ever do in life in order to guarantee your own personal freedoms for as long as you live. This includes the freedom to be able to continue to make your own decisions as you get older and to not have a probate court judge (arguably, for your own protection) put another person in control of you and what you can and can’t do with your own money. Shockingly, the only way to protect yourself from unwillingly having your personal freedoms stripped from you (because one particular judge has decided that you are no longer competent) is to already have a rock solid estate plan in place. Even more importantly, that estate plan must have been done a time when your mental capacity was unquestionably sound or it can be easily overturned by a judge who has no motive do anything other than appoint a conservator over you.
When should I get professional estate planning done?
The fact of the matter is that incapacity and death can happen to anyone at any age or time, especially if you are involved in any kind of high-risk activity, like downhill skiing, trapshooting, racing, parachuting, flying, boating, doing your job, driving a car, or simply walking across the street. Being prepared for the unexpected is not only financially prudent but it is also very wise. That is why doing expertly prepared estate planning now is always smarter than ever gambling with fate.
Can I hire just any attorney to do estate planning for me?
On its face you would think that it would be ok to hire just any attorney that you could find to help you get your estate planning done. But, in reality, nothing could be further from the truth. Unlike medical doctors, an attorney can “say” that that “do” estate planning and have no training or skills or experience whatsoever to be able to effectively help you, or your estate, stay out of probate court when you become incapacitated or die. This is why you want to seek out and hire only a certified specialist in Estate Planning, Trust and Probate Law because this person is a qualified Estate Planning Attorney. This attorney has been proven by their state bar association to have the education, experience and skills to be able to properly put you (and your things) in the best position to stay out of court both during and after your life.
What is a Qualified Estate Planning Attorney?
A qualified estate planning attorney is board-certified as an expert in the legal specialty area known as Estate Planning, Trust, and Probate Law. In California, attorneys who are experts in estate planning can get certified by the State Bar of California Board of Legal Specialization to practice in this specialty area of law. To be eligible, the attorney has to be a member of the State Bar of California and has to have been engaged in the practice of law in Estate Planning, Trust, and Probate Law for a minimum of 25 percent of the time the attorney has spent in their occupational endeavors during each of the previous five years in which they’ve practiced law. They must have demonstrated a high level of experience in the specialty field of estate planning by meeting specific task and experience requirements as required by the state bar. They also must have completed at least forty-five hours of continuing education in the Estate Planning, Trust, and Probate Law or a closely related field. And, finally, they also have been favorably evaluated by other attorneys and judges who are familiar with that attorney’s expert experience.
If a properly prepared and funded Living Trust eliminates the need to go through probate, avoids unnecessary fees, delays and publicity, why would anyone do a Will?
Unfortunately, a lot of people, even very highly educated people who are not necessarily attorneys, and even some attorneys who are not experts in estate planning, are extremely misinformed about the truth when it comes to this area of law. The sad truth is that most people have, unwittingly, received their information about this subject from wrong sources like financial planners, bank representatives, insurance agents, internet legal technology stores, and a plethora of other dispensaries that sell “estate planning” without giving you any proper legal advice. The result is that most people simply are not aware how critically important it is to get quality estate planning, or when to do it, or why they should do it. As a result, they are fed a lie that all they need is the simple Will that they can do themselves if they purchase the cheap product that is being pushed onto them. This type of planning usually only leads to disaster.
What is Trust Administration?
Trust administration is the legal process that occurs after the Settlor (the creator) of a living Trust has died. The Successor Trustee is charged with fulfilling certain duties and responsibilities to do what is necessary to gather the trust’s assets, pay the debts and expenses, notify the beneficiaries and distribute the trust estate to them according to the specific terms of the Trust.
When does Trust Administration occur?
Trust administration takes place when the Settlor of a living Trust has died. It, usually, must happen within a certain amount of time after the Settlor’s death. Otherwise, the Successor Trustee can be found by a probate court as personally liable for any and all damages, including attorney’s fees, that might result from the beneficiaries having to seek legal help to get their fair share.
How long does it take to prepare an effective estate plan?
Contrary to what you may think, it doesn’t take weeks or even months to get an effective estate plan done. In fact, you can get your estate planning completely accomplished in about four to eight hours of your own personal time with a maximum of two office visits to the attorney. Sometimes, it can also be done within one to two days, especially if there is an emergency, depending upon how cooperative you are with the estate planning attorney specialist. How much time it really takes to prepare your particular bulletproof estate plan is primarily and largely up to you.
Do I have any rights if I am named as a Beneficiary of someone’s Trust?
If you discover that you are named as a beneficiary of someone’s living Trust then you should consult with a duly qualified Estate Planning attorney if after a reasonable time [like sixty (60) after the Settlor’s death] you have not yet been notified, in writing, by the Successor Trustee of the Trust. This is because you do have rights and you will need the help of an expert estate planning attorney to best represent you in the matter.
What should I do if I am named as a Successor Trustee of someone’s Trust?
If you have been named as a Successor Trustee of someone’s living Trust and the Settlor (the creator of that Trust) has now died, then you have just inherited a big responsibility. As a Successor Trustee you are now charged with the task of carrying out certain duties and responsibilities that, without the proper legal guidance, can lead you directly into land of personal liability. For best results, you need to immediately seek out the services of a duly qualified Estate Planning Attorney who is skilled and experienced in guiding you through the quagmire known as of trust administration.
Why can’t I just do my own estate planning without an attorney?
You certainly can. However, you will soon realize that you have made a mistake. Some of my best clients are clients that first started out by trying to do their own estate planning from books, fill-in-the-blank forms, compact discs, and other resources. These people are the ones who truly appreciate a clear, concise, and completed estate plan that is actually legible. They have spent the time and the money to try to learn this stuff on their own. They have read enough do-it-yourself books, and they have downloaded enough fillable forms from faux legal resources to come to realize just how much they really don’t know. More importantly, despite all their best efforts, they finally accept the fact that they will never know enough doing it this way (on their own) to ever be able to sleep well at night with the estate plan that they purportedly made for themselves.
What is an estate planning pyramid?
An Estate Planning Pyramid is a diagram that shows you the type of estate planning that you should do if you want to achieve certain results. It also shows you who currently does estate planning. Where do you want to fit in?
– Hiring a Certified
Specialist EP, T & P
Law (Upfront $$$$ now
/ Least Expensive later)
10% of People Potentially
a better chance of protection
– Hiring an Attorney who says they
“do” Estate Planning (Up-front
$$$ / Potentially Expensive later)
15% of People A Questionable chance
of protection – Hiring an Attorney who
does lots of things including “Estate Planning”
on the side (Upfront $$ now / Very Expensive later)
20% of People Little chance of protection – Doing It Yourself /
Online Legal Services (Little upfront $ now / Extremely Expensive later)
Most People No protection whatsoever – No Planning At All (No upfront $ now / Most Expensive later)
Where Do You Want To Be on The Pyramid?