San Diego Estate Planning Lawyer Blog

Published on: July 23, 2009

What is Your San Diego Probate Matter Going to Cost?

The fees for a probate attorney to handle your probate matter are set forth in the Californa Probate Code. Section 10810 escribes the maximum fees an attorney can charge. These are as follows:

4% of the first $100,000 3% of the next $100,000 2% of the next $800,000 1% of the next $9 million If the estate is worth more than $25 million, the Court will determine the fee.

Who is entitled to these fees? The statute allows compensation for both the attorney handling the probate and the executor or administrator (if you have read the previous blogs, you know the difference). So for example, if the estate is valued at $500,000, the statutory fees would be $13,000 for the attorney and $13,000 for the executor/administrator. With a $1 million estate, the fees would be $23,000 each, or $46,000 total. Fees can also be increased by the court if the probate is complicated by litigation or tax issues.

Published on: July 20, 2009

What if no will can be found? Is probate still necessary?

by Scott C. Soady

If a person dies and they have a will, there will have to be a probate proceeding to transfer the assets. As you know from reading the previous blog, a probate is simply the court supervised proceeding to determine who the heirs or beneficiaries are and transfer the assets to them.

If person dies and leaves no will ( ie. they died intestate), there will still have to be a probate. The Court will distribute your estate to your heirs at law to be distinguished from the situation where a will names the beneficiaries you want to inherit who may or may not be your heirs. As an example, if you want to leave money to a favorite charity, you have to name that charity in a will or a trust. Without either, your estate will be an intestate estate and be distributed to your heirs, not the charity you had in mind.

The distinction between a will and no will is simply that if no will is found, the estate will be distibuted according to the laws of intestate succession. In California with a decedent who is single, the beneficiaries will be the children; if no children, then to parents; if no parents, then to brothers and sisters or their children. If none of those individuals exist, then the estate will go to grandparents, if they are still alive. If none of those relatives exist, then the estate will go to the State of California.

Published on: July 15, 2009

Glossary of Terms for San Diego Probate

by Scott C. Soady

This blog entry is the first in a series of blogs about probate, what is is, who is involved, how long does it take, and what does it cost.

Estate planning lawyers use a lot of terms in probate that most laymen do not know the meaning of unless they have been a participant in the probate process. The following is a short glossary of terms used in probate so that you understand who the players are and what the definitions are of commonly used terms.

Administrator – the individual appointed by the probate court to administer the decedent’s estate when there is no will

Published on: July 11, 2009

Guardianship Issues Brought To Light By the Michael Jackson Case

by Scott C. Soady

The San Diego Probate Courts hear many guardianship cases each week, in the North County Branch or the downtown branch.

A probate guardianship is the appointment by the Court of an adult or adults who will have legal guardianship over a minor child. There are two types of guardianships: (1) guardianship of the person and (2) guardianship of the estate. A child’s guardian will be legally accountable for taking care of the child’s education, shelter, food, clothing, and health care. This is a huge responsibility which lasts until the child is 18. A guardian of a minor’s estate is responsible for handling the assets of the minor.

The Michael Jackson case has caused many people to ask why the Los Angeles Probate Court is involved in determining who should be the guardians of his three children. After all Jackson did nominate his mother Katherine Jackson as the guardian of his children and that is the point of having an estate plan that incorporates a nomination of guardian(s) for minor children. However some people may not realize that the individual you name in your will or trust is just a nomination; it is not etched in concrete. The nomination sets worth your wishes but if other individuals want to file for guardianship, it will be a probate judge who will determine whether your wishes are in the best interest of the children. Hence the Court in the Jackson matter will have to weigh the interests of the children together with the wishes of Michael Jackson and the qualifications of both Katherine Jackson and the biological mom, Debbie Rowe.

Published on: July 6, 2009

Nursing Home Concerns of San Diego Seniors

by Scott C. Soady

Many seniors have serious concerns about going into a nursing home. They have questions such as whether they can be forced to go into a nursing home, how to pay for nursing home care, and how to choose a nursing home facility that will provide good care. They also wonder if they can qualify for Medi-Cal to pay for such costs.

No one can be forced into a nursing home. If you do not believe you need nursing home care, the only way you can be forced into such a situation is through a court ordered conservatorship. An interested party can file a petition to have a conservator appointed if you are unable to take care of yourself. You have the right to appear at the hearing, present evidence that you do not need a conservator, and have a lawyer represent you.

If you do need nursing home care, there are many reputable ones. Choosing the right nursing home can be an important decision for you and your family. Nursing homes are strictly regulated by the state and federal government. There are regular inspections and procedures for complaints. In San Diego, there are many nursing homes. You can get information about how to choose one from AARP and California Advocates for Nursing Home Reform. Personal referrals from friends, senior centers, or churches can help narrow your search. Make sure you personally visit the ones you are considering and if Medi-Cal may be paying for such care at some point, choose a place that accepts Medi-Cal so that the individual will not have to be moved once Med-Cal is paying for the care.

Published on: July 2, 2009

Probate in San Diego

by Scott C. Soady

According to a survey by Martindale-Hubbell at lawyers.com, more than half of the people in America do not have a will or a trust. If you do not prepare a will before you die, your estate will have to go through probate. In fact, if you do prepare a will rather than a trust, your estate will have to go through probate.

Probate in San Diego is the legal process of administering a decedent’s estate so that legal title to property can be transferred from the decedent’s estate to his or her beneficiaries. If the decedent has died in San Diego, the estate will be probated in the San Diego courts. In San Diego County, a petition for probate can be filed in the downtown San Diego Probate Court or the North County Probate Court located in Vista.

For most people, becoming an executor of an estate with a will, or becoming an administrator of an estate without a will, is something that requires the assistance of a lawyer. Sometimes people think they can handle a probate without legal counsel, get involved in the process, and then decide that they are in over their head and need legal assistance. Many clients find the process time consuming and confusing. There are many nuances to filing the correct documents with the Probate Court in a timely fashion. If property is owned out of California such as a timeshare, second home, etc., ancillary probate proceedings have to be set up in those states, which complicates the settling of the estate. Sometimes court appearances have to be made which makes some lay people uncomfortable.

Published on: June 29, 2009

Settling Michael Jackson’s Estate Could Be a Real Life “Thriller”

by Scott C. Soady

Newspapers and magazines are already commenting that Michael Jackson’s estate will be a real nightmare. No one seems to know at this point whether Jackson had a will or a trust. Some people think there is no way he would have failed to provide for his children. In the absence of a will or a trust, his children would inherit the estate equally.

Whether Jackson created an estate plan or not, his estate will have to be settled, either in the probate court, or through trust administration. There are many creditors already lining up to be included. Although Jackson sold millions of records, he reportedly was in serious debt, perhaps as much as $400 million.

One of the assets in his estate that is going to be fascinating is the publishing rights Jackson had to millions of songs. Jackson outbid Sir Paul McCartney for a 50% interest in a music publishing catalog that includes rights to the Beatles hits as well as publishing rights to other hits by major artists, Jackson apparently paid $48 million for the rights, now estimated to be worth $500 million.

Published on: June 27, 2009

Challenging Wills or Trusts

by Scott C. Soady

Part of our estate planning caseload at Law Office of Scott C. Soady, A Professional Corporation are cases in which a will or a trust is being questioned or challenged. Typical factual scenarios are where an heir or a beneficiary has been disinherited or their share reduced because of “death bed” changes which may have resulted from undue influence, fraud, or duress. Most wills or trusts contain a clause known as a “no contest clause.” “No contest” clauses are commonly found in wills and trusts to discourage someone from challenging the will or trust. Typically, the language is that if anyone contests the will or trust, that individual will take nothing.

Existing law however, allows a beneficiary or other individual to file a petition with the court (called a Safe Harbor petition) asking the court to determine whether a particular challenge fits within the definition of a “contest.” If the court rules that it doesn’t constitute a contest, then the will or trust can be challenged in spite of the “no contest” clause.

Last Year the California legislature passed a bill which was signed by Governor Schwarzenegger that will change the law regarding “no contest” clauses. Under the new law which will take effect in January 2010, the applicability of the “no contest” clauses will be limited to specific circumstances. The new law will eliminate Safe Harbor petitions and will also provide that a “no contest” clause will only be enforceable to defeat a will or a trust contest if brought without probable cause.

Published on: June 24, 2009

Estate Planning is One Step in Financial Health

by Scott C. Soady

What is financial Health? Financial health is the state of your finances. If you have good financial health, you are managing your assets, paying your debts, and saving for retirement. You also are planning for your spouse and children should something happen to you. CNN Money.com. has a nine step approach to test your financial health to see if you are on track to reach your retirement goals despite this economy. The nine steps have to do with saving for retirement, diversifying your investments, staying out of debt, maintaining an emergency fund, etc. Several of the steps involve estate planning.

The fifth step for example asks whether your estate plan is in order. Do you have a document to designate a guardian for your minor children? Have you named beneficiaries for your 401(k)s, IRAs, and insurance policies, and are they up to date? Do you have a durable power of attorney for health care? Have you set up a trust so that your children will not receive an inheritance upon turning 18? These are all important issues that are part of being financially healthy.

The seventh step asks whether you have or will be receiving an inheritance. This is important because inheriting from your parents or others can affect your own estate and require the drafting of a different kind of trust than the one you have. Inheriting a retirement account such as a 401(k) or an IRA can be tricky so you should seek professional advice if you are the beneficiary of one of these. Tax concerns may be another area that should be addressed.

Published on: June 19, 2009

Is there a Reading of the Last Will & Testament?

by Scott C. Soady

You have no doubt watched movies or TV shows where everyone gathers in the lawyer’s office, solemn and perhaps anxious about the “reading of the will“. The will is then read aloud by the lawyer to all interested parties. It is unknown where this idea came from but it never happens in real life. There is no legal requirement that a will or a trust be read out loud to family members. As a practical matter, family members usually know where their loved one’s will or trust is located and it may be several weeks until they even consult with a lawyer about what should be done. At that point, the lawyer may even provide copies to the beneficiaries.

With a will, the will is filed with the Probate Court to start the probate process and once that happens, the will is a matter of public record, open to anyone who wants to view it. That is how the public knows so much about celebrities and their wills.

If you have a trust, the trust which becomes irrevocable at your death, your beneficiaries and heirs are entitled to a copy of the trust but your trust does not become public. Privacy is one of the advantages of a trust over a will.