Frequently Asked Questions

What is estate planning?

Estate planning is the process by which an individual or family arranges the transfer of assets in anticipation of death. An estate plan aims to preserve the maximum amount of wealth possible for the intended beneficiaries and flexibility for the individual prior to death. James Legal Group can meet with you free of charge, in a setting of your choosing, to assist you in finding the most appropriate plan to meet your specific needs.

Does everyone need an estate plan?

Everyone should have some type of estate plan in place; however, not everyone needs a complicated estate plan. You can set up a free consultation with James Legal Group to discuss your goals and the type of estate plan which would be most appropriate for you.

What happens if I do not have an estate plan?

If you do not have any type of estate planning in place, your family will most likely have to probate your estate after your death. Probate is a legal process where the state determines what will happen to your estate and who will receive your assets based upon intestate succession.  The probate process is complicated and time consuming.  Additionally, it is generally more expensive for your family then it would have been to create an estate plan during your life.

What does intestate succession mean?

Intestate succession is a process used by the courts to determine the order of who inherits your assets. The order is the same for everyone; however, you may not wish to distribute your assets in this way.  Intestate succession occurs for anyone that does not have an estate plan.

What types of documents are included in an estate plan?

Estate plans will vary based on the needs of each individual client. James Legal Group will help you determine the most suitable documents for your estate plan.  The most common documents in an estate plan are a trust, a will, power of attorneys, and an advance health care directive.

What is a Will?

A Will is a document you create in which you specify how you wish your estate managed and distributed after your death. A Will enables you to select your heirs rather than allowing the state laws of descent and distribution to choose them for you.  A Will allows you to select an individual to serve as the executor of your estate, and safeguards your right to select an individual to serve as guardian to raise your young children in the event of your death.

What is a Revocable Living Trust?

A Revocable Living Trust is a legal document that indicates exactly what your desires are with regard to your assets, your dependents, and your heirs. A living trust bypasses the costly and time-consuming process of probate. You will name a “Successor Trustee,” who will distribute your trust assets according to your instructions, which will be clearly documented.  The “Successor Trustee” performs this function at the time of your death or if you’re unable to manage your financial, healthcare, or legal affairs due to incapacity.

Which should I have…a Will or a Trust?

There is not one simple answer; it depends on several factors including: the value and nature of your asset, the upfront costs you wish to pay for an estate plan, whether you have an individual you trust to be named as a personal representative, and your ability to follow through with your estate plan during your lifetime. James Legal Group is happy to meet with you to discuss your options and suggest the most appropriate plan for you.

What is a Financial Durable Power of Attorney?

A Financial Durable Power of Attorney is simply a way to allow someone else to manage your finances if you become incapacitated and are unable to make those decisions yourself.

What is a Power of Attorney for Healthcare?

A Power of Attorney for Healthcare is a document in which you name a trusted person to oversee your medical care and make health care decisions for you if you are unable to do so. Your health care agent will work with doctors and other health care providers to assure you get the kind of medical care you wish to receive. When arranging your care, your agent is legally bound to follow your treatment preferences.

Why would I want to avoid Probate?

The cost is usually much higher than would be required for the administration of a living trust for an estate valued at the same amount. It usually takes longer to probate an estate than to administer a trust. Most estates don’t need the supervision of the court unless disputes occur.

How expensive is Probate?

Probate can be extremely expensive. Every individual would likely have an estate plan in place if they were aware of the fees associated with probate. Many of the fees associated with Probate are standard fees and/or fees set forth by statute so they are uniform for everyone going through probate.  There are filing fees paid to the court, fees paid to the court appointed probate referee, and fees paid to the estates attorney and executor.  These fees are eliminated from the estate and never touch the hands of the beneficiaries.

Example: Let’s say the only asset in an estate is a $500,000 house, and there is a $400,000 mortgage on it.

• The statutory fee would be $13,000 each for the attorney and the executor of the estate based on the full $500,000 value of the home (it doesn’t matter what is owed on the home for purposes of determining the statutory fee for attorneys and executors) = $26,000
• Appraisal fee equals .1% of the appraised assets (so in our example a 500K house) = $500.00
• Court Filing Fees = approx. $890.00
• Total fees for a 500K house in Probate = $27,390

How long does Probate take to complete?

Every estate is different; however, on average it takes 12-18 months to settle an estate. A fast probate without any contests (challenges to the estate) can take as little as 8 months; larger estates or estates with contests can take several years.

Are Probate records public?

Yes, everything filed with the probate court is public record. Both your will and an inventory/appraisal of all the probate assets and debts would be accessible to anyone that wished to view them.  On the other hand, a trust remains completely confidential unless someone contests it and it is brought to the attention of the court.

How does an estate plan effect taxes?

At death, you are subject to the Federal Estate Gift Tax. The amount of money you are allowed to gift changes yearly; however, it is only currently a concern for the very wealthy. If you are concerned about your tax liabilities, James Legal Group will work with you to find strategies to avoid or reduce this burden.

How does estate planning help me plan for my children?

Children are one of the most important reasons to have a reliable estate plan in place. Without an estate plan, the money will be given to the guardian for their benefit, and the child will receive any remaining money at the age of 18. Many parents would prefer to delay distribution until the child is older or to spread the distribution out.  If either of these are your desires, James Legal Group can assist you in drafting a Revocable Living Trust to fulfill these desires.

How does estate planning avoid conflicts between family members?

By drafting a clear estate plan, your family members are more likely to acknowledge your wishes. While estate planning cannot avoid all contests to wills and trusts, it cuts down litigated issues significantly.

Can I create a trust to help support someone else?

Yes, there are both Support Trusts and Special Needs Trusts. A Support Trust is a trust designed to provide for the beneficiary’s support (such as housing, food, school tuition, etc.).  A Special Needs Trust is designed to keep someone eligible for public benefit programs while also receiving the benefit of a supplemental fund.  This supplemental fund can pay for an entire range of services and goods that are not covered by public programs.

Who should I pick to be my Executor or Trustee?

This is a very important decision – one that needs to be based in logic rather than emotion. It is a good idea to select an individual or entity that has the following knowledge and skills: the ability to understand tax and trust management issues; the time needed to act in this capacity; the knowledge to manage securities, property, and businesses; and the ability to remain impartial.

What if there are changes after I have drafted my estate plan?

You should contact the attorney that drafted your estate planning documents if you need to make modifications. Many law firms charge very high prices to modify estate planning documents; however, James Legal Group maintains your files and therefore should be able to make simple changes rather quickly with very minimal (if any) cost to you.

Where should I keep my estate planning documents?

You should keep these documents where you keep all of your other important documents. You should ask the attorney who drafts your documents whether he/she will maintain a copy for you. Do not keep your documents in a bank safe deposit box because the bank will freeze your assets, including your safe deposit box, until they receive a court order.

Who do I need to tell once I have drafted an estate plan?

It is important that you discuss your estate plan with the individual you have selected as your Executor/Trustee and any secondary beneficiaries you have selected. Additionally, you should provide these individuals with a copy of your estate planning documents.

What is a Probate Conservatorship?

A judicial proceeding where the court appoints an individual (the conservator) to act on the behalf of the incapacitated person (the conservatee) when they are no longer able to handle their own financial and/or personal affairs. The establishment of a conservatorship restricts the conservatee’s powers over financial and/or personal care decisions. If someone you know is no longer capable of handling their personal or financial affairs, you can contact James Legal Group to discuss whether a conservatorship proceeding would be appropriate.

How is a Probate Conservatorship different from an Lanterman Petris-Short (LPS) Conservatorship?

LPS conservatorships are established under the Lanterman-Petris-Short Act and are governed by the California Welfare and Institutions Code rather than the probate code. LPS conservatorships are for individuals that are “gravely disabled.” These types of conservatorships can only be filed by a local government agency.

What is Conservatorship of the Person verses Conservatorship of the Estate?

A Conservator of the Person is appointed to make decisions about personal matters for the conservatee, including decisions about health care, food, clothing, and residence. A Conservator of the Estate is responsible for handling the financial affairs of the conservatee. The conservator has the power to collect the conservatee’s assets, pay bills, make investments, etc. A conservatee can have different people as the conservator of person and estate or one person can serve in both functions. Some conservatees may have only a conservator of the person, or only a conservator of the estate

Who can be a conservator?

A relative, friend, public official, nonprofit agency, or professional conservator may petition the court to be appointed conservator of an individual. To obtain a conservatorship, the proposed conservator must be bondable; that is, a surety agency must be willing to issue a bond ensuring that the conservator will faithfully execute his or her duties. There are times where a court can waive the bond requirement.

Will a conservatorship allow me to put the conservatee in a locked facility such as a drug rehabilitation center or a mental institution?

No, under a Probate Conservatorship, the conservator may not place the conservatee into a locked institution against his or her will. The only exception to this is if the conservator obtains special powers for conservatee’s that suffer from dementia.

What is the difference between a General Conservatorship and a Limited Conservatorship?

A General Conservatorship is usually initiated for an adult who is declining in their ability to make either personal or financial decisions for themselves, like an elderly parent or an adult who suffers a head injury. A Limited Conservatorship is for an adult who has a disability that began prior to turning eighteen and is designed to promote as much self-sufficiency as possible.

Should I obtain conservatorship for my developmentally delayed child who is now a legal adult (over 18)?

Yes, it would be a good idea to obtain a limited conservatorship. A limited conservatorship would allow the parents to assist their child with responsibilities they are not able to complete without help.

I want to seek a General Conservatorship for an individual suffering from dementia, do I have to do anything differently?

You would still file for General Conservatorship; however, you can request special powers from the court. The special powers allow a conservator to place the conservatee in a locked facility specially designed for the treatment of dementia and to authorize psychotropic medications meant to treat dementia.

Resources

California Probate Code http://www.leginfo.ca.gov/.html/prob_table_of_contents.html

State Bar of California – Do I Need Estate Planning http://www.calbar.ca.gov/Public/Pamphlets/EstatePlanning.aspx

California Courts – Wills, Estates, and Probate http://www.courts.ca.gov/8865.htm

Superior Court of San Diego Probate http://www.sdcourt.ca.gov/portal/page?_pageid=55,1529928&_dad=portal&_schema=PORTAL