Articles Posted in Probate

A frequent question that comes up when doing estate planning in my Newport Beach, California office is why should one pay for a trust, when a will is so much cheaper.  My response is are you thinking long-term or short-term?

If you are thinking short-term, a will is always going to be cheaper than a trust.  The cost, however, comes at the end, because you have virtually guarantied that there will be a probate of that will.  Probate fees will far exceed the cost of any trust.

Probate fees in California are set by statute.  As an example, if you have an estate valued at $500,000.00 that is subject to probate, the statutory fees for the attorney are $13,000.00.  That is a number of times more expensive than the cost of establishing a trust. Continue Reading

Virtually every decision regarding probate is based on title to or value of assets owned by the decedent.

Title is important because ownership can transfer as a matter of law (e.g. joint tenancy with right of survivorship, where the surviving joint tenant takes by recording an affidavit, death of joint tenant); or a bank account might be titled to a trust (e.g. John Doe and Mary Doe, trustees of the John Doe and Mary Doe 2015 Family Trust), in which case the trust controls what is in the account.  In these instances, for those assets, a probate would not be necessary.

However, where there are no joint tenancy assets, payable on death accounts, trusts or other legal means by which property transfers to another without probate, one must then look to value.

In general, if the total estate of the decedent (not counting those assets which pass because of their title as described above) is $150,000.00 or less and does not include real property, California law permits the heirs to use an affidavit procedure (Probate Code §13101) to obtain ownership of the assets.  This is very easy when the sole account of the Decedent is $149,000.00.  However, if the assets exceed $150,000.00, probate will be necessary to have those assets transferred to the decedent’s heirs.

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You have been successful and obtained a California judgment against your adversary. However, you have been unsuccessful in collecting on it. Should you be concerned about the passage of time? After all, interest on judgments is generally 10% annually in California.

The answer is, it depends. If you have a civil judgment, it must be renewed through the courts every ten years. If not, it will become unenforceable (California Code of Civil Procedure Section 683.020). Renewal is accomplished by submitting an application for renewal to the court prior to the expiration of the ten year period (California Code of Civil Procedure Section 683.120).

However, if you have a family law judgment (or order), it never expires (California Family Code Section 291). This is a very useful quality, if you should find, for example, that your ex-spouse’s parent has died and that ex-spouse is about to come into enough money to satisfy that more than 10 year old judgment or order……