CALIFORNIA WILLS & TRUSTS ATTORNEYS IN THE SOUTH BAY SERVING ORANGE AND LOS ANGELES COUNTY
We assist clients by writing their Wills and Trusts in an attempt to manage client’s estate for the benefit of the client and their potential beneficiaries. When we are hired to prepare a trust, there are accompanying documents that are included. Of course, the client can determine what is necessary for their needs. However it is common to prepare a Pour Over Will with the Trust. We also prepare the Financial Power of Attorney and a Health Care Directive to insure the clients wishes are memorialized in the event of an unexpected injury or a lack of capacity. We want to make sure that the clients desires are expressed in these documents so that the family is not left to make those hard decisions in those difficult times. We also prepare the accompanying grant deeds to transfer real property into the trust. If you need a trust amendment to modify a beneficiary or other gift it is a relatively straightforward process. Additionally, we provide legal support for probate estate matters including petitions for probate, will or trust contests, trials, appeals, and other general probate matters.
Frequently Asked Questions about Probate Estates, Wills & Trusts:
Below are answers to most of our frequently asked questions we receive from potential clients who call in for their free telephone consultation.
What is a Personal Representative?
A “Personal Representative” is a broad term to describe a category of persons tasked with administering a decedent’s will or estate under probate law. The category of “Personal Representative” can include an executor, administrator, special administrator, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status. (California Probate Code § 58).
What is an Executor?
The term “executor” is included within the term “personal representative.” An executor is a person specifically named in a will who is responsible for distributing the real and personal property of the deceased to the will’s beneficiaries. An Executor’s duties include gathering estate assets, paying the deceased’s debts from the estate proceeds, and distributing the rest of the property according to the terms of the will. It is common practice for an executor to hire an attorney to assist them in estate distribution. If named executor in the will declines to act, is disqualified from acting or is deceased and there is no named successor in the will, the Court may appoint a Special Administrator through Probate proceedings. (California Probate Code § 58).
What is an Administrator?
An administrator is a type of personal representative that is appointed by the Court when there is no will that names an executor or if the named executor declines to act, is disqualified from acting or is deceased and there is no named successor in the will. (California Probate Code § 58). In this instance, any interested party may Petition the Court to be appointed Administrator or Special Administrator.
What is a Special Administrator?
A Special Administrator is a person appointed by the Court to administer a will or estate. The appointment of Special Administrator may be for a specified period, to perform specified tasks, or any carry through any other activity that is specified by Court Order. (California Probate Code §8540).
Subject to limitations by the Court, a Special Administrator may take possession of all property of the estate, collect all rents and incomes of the estate, maintain and defend lawsuits against the estate and sell perishable property. (California Probate Code §8544(a)). The Special Administrator’s authority ceases upon issuance of letters to a general Personal Representative or when the Court otherwise specifies. (California Probate Code §8546(a)). The Court fixes the amount paid to a Special Administrator for their services, which is generally paid at the end of administration of the estate. The Special Administrator may be paid sooner if the Personal Representative of the estate petitions the Court for payment or if the Court decides otherwise. (California Probate Code §8546(b)).
How Much Does a Personal Representative Get Paid?
The payment of a Personal Representative depends on several factors. First, a Personal Representative may request a partial payment from the Court after four months have passed since the issuance of Letters. (California Probate Code §10802). The Personal Representative may also petition the Court for final compensation at the time of filing the final account of the estate. (California Probate Code §10802).
If the will specifies the amount that the Personal Representative is to be paid, the specified amount will be the final and only compensation paid for services rendered. (California Probate Code §10802). However, if the will does not specify an amount, then the Personal Representative’s compensation amount depends on the size and value of the estate.
California Probate Code §10800 lays out the compensation for services rendered by a Personal Representative as follows:
(1) Four percent on the first one hundred thousand dollars ($100,000).
(2) Three percent on the next one hundred thousand dollars ($100,000).
(3) Two percent on the next eight hundred thousand dollars ($800,000).
(4) One percent on the next nine million dollars ($9,000,000).
(5) One-half of one percent on the next fifteen million dollars ($15,000,000).
(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.
In addition to payment for ordinary services, the Personal Representative may be paid for extraordinary services. The amount paid for extraordinary services is not fixed by statute but is at the discretion of the Court upon Petition. (California Probate Code §10801). The above specifications also apply to the amount an estate attorney may be compensated. (California Probate Code § §10810– 10812). Any agreement between beneficiaries and the compensated party to be paid for a higher amount is void (California Probate Code § §10803, 10813).
How Do You Calculate the Value of an Estate?
The value of the estate accounted for by the personal representative is the total amount of the appraisal value of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property. (California Probate Code § 10800).
What is Considered a Small Estate?
An estate is a “small estate” when the gross value of property in California, after statutory exclusions, does not exceed one hundred and fifty thousand dollars ($150,000.00). (California Probate Code §13100). Personal property from an estate of this size may be exempt from the probate process and transferred directly to a beneficiary upon the filing of a Small Estate Affidavit. (California Probate Code §13100). The Affidavit may be filed forty (40) days from the date of the decedent’s death. If the estate includes real property, an inventory and appraisal must be attached to the affidavit. (California Probate Code §13101).
What is Considered a Medium Estate?
A medium estate generally consists of personal and real property valued between one hundred and fifty thousand dollar and nine million dollars ($9,000,000.000). An estate of this size requires a Petition for Probate to be filed with the Probate Courts.
What is Considered a Large Estate?
A large estate generally consists of personal and real property valued above nine million dollars ($9,000,000.000). An estate of this size requires a Petition for Probate to be filed with the Probate Courts.
What is a Trustee?
A trust is created by the Settlor and is meant to benefit the beneficiaries. A trustee is a third party who has the responsibilities of administering the trust to the beneficiaries according to the terms of the trust, paying the debts and expenses of the trust and periodically reporting the status of the assets to the beneficiaries. (California Probate Code §84). The trustee has a duty to maintain, protect and invest the assets of the trust and ultimately administer the assets of the trust in an impartial and unbiased way. (California Probate Code §§16002-16004). A trust can come in different shapes and sizes and can be made by individuals, companies, and non-profit organizations to name a few. As such, the responsibilities and compensation of a trustee varies vastly depending on the terms of the trust, the assets attributed to the trust, the size of the trust, number of beneficiaries named and what the purpose of the trust is overall.
How Much Does a Trustee Get Paid?
The amount a trustee is paid depends on several factors. In some instances, a trustee’s compensation amount is specified in the terms of the trust. (California Probate Code §15680(a)). The Court has discretion to increase the amount paid to the trustee if the trustee’s duties have changed since the trust was written or where the amount specified is too low to be fair. (California Probate Code §15680(b)).
In instances where the trust does not specify the amount of compensation the trustee is to be paid, the trustee is entitled to reasonable compensation. (California Probate Code §15681). Reasonable compensation is determined by the Court and varies depending on the circumstances of each case. (California Probate Code §15680(b)). The Probate code does allow for reimbursement of the trustee’s expenses in maintaining the trust, but the expenses must be necessary to the trust. Conversely, a trustee will not be reimbursed for expenses that were not properly incurred for the benefit of the trust. (California Probate Code §15684).
What is a Power of Attorney?
A power of attorney is a document that grants a person the legal authority to act on behalf of another person. (California Probate Code §4022). The person who is granted the legal authority is referred to as the ‘agent’ while the person who is granting the legal authority is referred to as the “principal.” (California Probate Code §4026). The agent acts on behalf of the principal when dealing with third parties. (Civil Code §2295).
What is a Health Care Directive?
A health care directive is a document that allows a person to provide written, medical instructions to doctors and healthcare providers regarding their medical care if the person becomes incapable of doing so themselves. (California Probate Code §4623). A health care directive does not require the nomination of another person to give instructions on behalf of a patient.
What is a Will?
A will is a written document prepared by a person (a “testator”) prior to death, that provides instructions regarding the distribution and disposition of their real and personal property upon their death. A will can also provide instructions as to the care of minor children and pets. The term “Will” includes to a codicil or other writing that evidence the wishes of the deceased and that appoints person to distribute their assets. (California Probate Code §88). In order to write a valid will in California, it must be properly witnessed, signed by the testator and the testator must be at least eighteen years of age. (California Probate Code §6110).
What is a Trust?
A trust is an agreement that creates a fiduciary relationship between three parties: the Settlor, the Trustee and the Beneficiary. A trust is generally created through a written document. The Settlor is the person who creates the trust, which contains instructions for care and/ or distribution of assets for the benefit of a specified, intended recipient (the “Beneficiary”). The Trustee is a third party selected by the Settlor to carry out the terms of the trust to the benefit of the Beneficiary. There are multiple types of trusts. (California Probate Code §82).
What is the Difference Between a Will and a Trust?
A trust is similar to a will in that they are both written documents which gives a third-party instruction on disposition of real and personal property. The largest difference between a will and trust is that a will is effective only upon death. A trust, in contrast, can be created to distribute property and attend to affairs upon a person’s death or while a person is alive. As such, a trust is not generally subject to the probate process, but a will must be submitted to the Probate Courts. Because of this, a will is public record, whereas a trust may remain private. Additionally, the terms of a will provide instruction for the disposition of all property owned by a party, but a person can limit what is included in the terms and distribution of the trust.
Who Must Be Given Notice of Petition for Probate of a Will?
Probate Code §8110 provides that at least fifteen (15) day before a hearing on a Petition to Probate a will, each heir of the deceased must be notified, in addition to each devisee, named executor or successor executor of the will. An heir is any person who is entitled to take property of the decedent in intestate succession and are generally determined through blood relation or legal relationship (such as spouse or adopted child). (California Probate Code §44).
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