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Torrance Elder Law Blog

How much does probate cost?

You have probably heard people say that Los Angeles residents should do all they can to avoid having their estates go to probate. This is because the perception is that probate costs a lot (and its expenses must be paid from estate assets). Yet there are times when it is necessary (even prudent) for an estate case to go to probate court. If you happen to be party to an estate that is headed to probate, then you may rightly be questioning how much the process will cost? 

Fortunately, California law offers you the information needed to get an estimate of what those expenses may be. It is one of the few states which allows attorneys to charge a statutory fee for services in a probate case (in all others, attorneys typically charge their standard hourly rate). This fees equates to a certain percentage of whatever estate assets are probated. According to Section 10810 of the California Probate Code, that fee breakdown is as follows: 

  • Four percent for the first $100,000 of the estate
  • Three percent for the next $100,000
  • Two percent for the next $800,000
  • One percent for the next $9 million
  • One-half percent for the next $15 million

Probate and sibling disputes

Our law office has covered many different topics related to the probate process, such as wrongdoing involving executors and misunderstanding with respect to fiduciary duties. Many more challenges related to probate may arise and some can be especially difficult for entire families to work through. For example, siblings may find themselves in a dispute over the way in which an estate is distributed following the passing of their loved one. In extreme cases, these disputes can lead to permanent estrangement and even threats and violence. As a result, it is critical for those involved in a dispute and those who anticipate a dispute to approach things with care.

Whether you are the executor of an estate and are worried about behavior between siblings or you are involved in a dispute with your own sibling, emotions can run high and you may be unsure of how to handle the situation. For example, your loved one may have decided to name you as the executor, but your brother or sister disagree with this decision. Or, perhaps your sibling is upset with the way in which property was divided, or you believe that you were taken advantage of by your sibling who is not living up to his or her fiduciary duties.

As a guardian or conservator, you have certain duties

If it falls on you to make the tough decisions in your family, you may contemplate seeking a guardianship and/or conservatorship over a loved one who became unable to care for him or herself. As difficult as this decision is to make, carrying out the duties you agree to take on could prove a challenge as well.

Before you make the final decision to be the one who will take on this responsibility, it may help to know what your duties entail as a guardian or conservator.

Can I create a pet trust?

If you are a pet lover and you are creating an estate plan, chances are you have wondered what will happen to your furry loved ones if you were to die and how the California laws might affect their care after you are gone. You may have considered bequeathing funds to someone in your will to cover the expenses of caring for your pet. While it is a good idea to designate a person that you trust for this job, if that person passes or is unable to provide care for the animal, your pet may be left without the care you had hoped. A will also does not guarantee that the funds will go expressly toward your pet's care or mandate the quality of care that is given. If your pet passes earlier rather than later, the person to whom the funds were given to provide the caretaking duties can still keep the money.

Good news: According to Senate Bill No. 685, you can legally create a pet trust in California to outline exactly the type of care you wish for your pet and with whom. With such a trust, you can appoint a trustee who must, by law, follow your express conditions for care. The trustee can be a person, a trust company or even a bank. The money placed in the trust can only be used in regard to your pet's care and is not simply given over to an individual to use at his or her discretion.

Should I add my child to my financial accounts?

If you are a California resident working on your estate planning, you may be thinking that it would just be easier to add your child onto your financial accounts instead of going through the steps of creating a valid will or trust. After all, you will need to pay for the legal work and when a will goes through probate, it can come with a price tag. So simply adding your beneficiary to your account just makes sense, right? Wrong. You can actually find yourself paying for that shortcut in a multitude of ways down the road.

According to The Judicial Branch of California, bank accounts are categorized as property. Since California is a community property state, having your child attached to your finances can put your money at risk. In the case of a divorce, your child will likely need to list all assets to which they have access. This means your account may end up on the table when assets are divided.

How long can you expect probate to last?

After the passing of a love one, you and your family likely have many questions to answer and decisions to make. If your loved one left a will or trust, some of the answers may be within those documents. In many cases, however, the estate cannot be entirely settled until it goes through the probate process.

Probate is the legal process of determining whether your loved one's will is authentic. It also includes closing out your loved one's estate by paying any final bills and taxes and distributing the remaining assets to the rightful heirs. Probate is often a long process, and if you wonder exactly how long, you are not alone. Each estate is different, and the time it takes to settle matters can vary depending on many circumstances.

Probating small estates in California

As an interested party to the estate of a family member or friend in Los Angeles, you may view the prospect of said estate having to go through probate court with a certain degree of trepidation. After all, the assumption is that the probate process is costly and can eat away a good portion of an estate's assets. Many have come to us here at The Law Office of Matthew C. Yu with the same concerns. Our first question to them is what is the value of the estate? The answer to that question (in your case) will determine whether it even needs to go through probate at all. 

It is not the state's intention to take away as much as it can from an estate through probate costs. Thus, it allows for smaller estates to avoid probate altogether. According to Section 13100 of California's Probate Code, estates valued at less than $150,000 do not need to be probated. However, avoiding probate is not automatic; you have to request it. You do so by signing an affidavit (under the penalty of perjury) after 40 days have elapsed since your loved one's death. Some of the information that must be submitted includes: 

  • Your loved one's name (along with his or her date and place of death, and a copy of his or her death certificate)
  • A declaration that 40 days has passed since he or she died
  • Your stated understanding that the value of his or her estate does not exceed $150,000
  • A description of the property you want transferred to you

DMC and DeLorean creator's estate at odds over iconic car

The administration of an estate is rarely a singular event; rather, it is a process that can go on for months, years or (in certain cases) even decades. When issues such as copyrighted material, trademarks and intellectual property are introduced into the estate administration process, they often are indicators of years of continued responsibilities for an estate's personal representative. These properties will typically continue to generate income, thus consistently adding value to the estate. The question then becomes which of the estate's beneficiaries becomes entitled to those profits. 

That is the question currently being argued by the DeLorean Motor Company and the estate of the original DeLorean's creator. While it has been decades since DeLoreans were manufactured and sold, the company still continues to make money thanks to the iconic car's association with the "Back to the Future" franchise. Universal Pictures came to an agreement with John DeLorean in 1989 to pay him a 5 percent net profit from all proceeds generated using the image of the car in merchandise and advertising. Those payments continued up until DeLorean's death in 2005. They then apparently began to be made to DMC (which is actually a separate entity than the company DeLorean himself founded). Universal claims the payments were made to DMC because the company does own the rights to the DMC name and the brand's trademarks. DeLorean's estate is now suing DMC for the value of those payments. 

Reasons to remove a personal representative

To be asked to be the personal representative of an estate in Los Angeles is an awesome responsibility. Those who assume it agree to represent the best interests of not only the testator, but also his or her beneficiaries. The job might seem as first glance to be quite complex, yet there are several resources to help personal representatives clearly understand their duties. 

The Superior Court of California has made the details of those responsibilities available for easy reference. They include: 

  • Managing an estate's assets
  • Inventory and catalog all estate property 
  • Work with creditors of the estate
  • Maintain insurance on estate property
  • Record all actions pertaining to the estate

Man disinherited after being convicted of wife's murder

When people in Los Angeles are murdered or die unexpectedly and their spouses, family members or loved ones are suspects, a common motive that law enforcement officials may look into is if one "did it for the money." The idea of killing someone to inherit their assets is certainly not new, although most would immediate assume that one who actually committed a crime for this reason would immediately be disinherited. Yet is that true? 

It is, yet it was not always this way. As recently as the 1950s, there were actually no laws in place that prevented murderers from inheriting assets from their victims. Today, however, such a thing cannot happen. This fact was recently reaffirmed in a case involving an attorney in Georgia. The man was recently convicted for killing his wife (despite his claims that his shooting her was unintentional). Evidence exists in his case that there may have been a financial motive for the crime; indeed, he had been named executor of her estate in her will, and also reclaimed sole ownership of their 85-acre ranch. Before being found guilty, he had already drained the estate of over $323,000. While many of those expenditures were deemed appropriate, other financial stipulations of the woman's will that called for payments to other parties were never (nor were her cremation expenses, leaving her askes unclaimed for almost six weeks). 

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