Variety of Estate Planning Documents by LA Probate Law


Variety of Estate Planning Documents by LA Probate Law


You may have heard some of the terms, Last Will and Testament, Living Will, Power of Attorney, but are not exactly sure what they are or whether you need them. From an Estate Planning perspective, these documents are essential to ensure that your assets are distributed properly and your legal interests are protected. The type of estate plan you need depends on your circumstances. The basic goal of any good estate plan is preparing for both death and incapacity. Generally this will include powers of attorney for health care and finances. It is always smart to have a will and in many instances, a living trust is also an excellent choice. LA Probate Law is experienced estate planners and can guide you through the process quickly and efficiently. We will listen to your desires, evaluate your needs and make recommendations appropriate for your circumstances.

Living Will

A Living Will is a document that sets forth your wishes as to certain types of medical treatment in the event that you suffer a permanent disability that renders you incapacitated with no hope of recovery. The instance that we are talking about here is the person in a coma or permanent vegetative state. A Last Will and Testament allows you to set out your specific wishes for how you want your property and assets to be divided upon your death. It also designates who will assume guardianship responsibility of any minor children if neither parent can serve as guardian. You can use a will to make bequests to charities explains LA Probate Law. Wills are easy to prepare, but are subjected to probate process, which, depending on the size of your estate, could take some time. Probate is the court process required when you die to verify your Will, if you have one.  If you don’t have a Will, this process determines who your closest blood relatives are that will inherit from you.  This court process also assures debts are paid. After that, a simple Will requires only a few other things. You must name an Executor of your Will. The Executor is the person who will handle the Estate affairs after your passing. They will open an Estate, determine all of your assets and liabilities, and make distribution of those assets as per the guidelines set forth in your Will. You will also have to name a Trustee if you plan on leaving any assets to a minor. There are a few other minor legal requirements that your local attorney can assist you with in drafting your Last Will and Testament.

Variety of Estate Planning Documents by LA Probate LawTrust

A trust is a way of making sure that property is held for the benefit of other people without giving them full control over it. The entity known as a trust will be essential in creating various strategies for accomplishing asset protection, estate planning, and privacy benefits says LA Probate Law. It's set up where there is a transfer of an asset by a person (the settlor) to other people (the trustees) who must hold and administer the gifted asset (the trust fund) for the benefit of specified people (the beneficiaries) in accordance with the terms of the trust. Your wishes and plans can be changed during your lifetime as your circumstances change.  By creating a customized estate plan, which includes a living trust, you will have peace of mind that your wishes will be fulfilled upon your death. Trusts are extremely flexible in form and almost any asset protection and estate planning goal can be accomplished by an attorney who is knowledgeable and experienced in this field. Using creative trust strategies, the planning opportunities for achieving tax savings and asset protection advantages are unlimited. The following examples will provide you with an overview of some of the techniques that can be used to achieve particular objectives in a variety of circumstances. The living trust, also known as a revocable living trust, is a written legal document similar to a will that sets forth your wishes and plans regarding matters during your life and upon your death.

Power of Attorney

You can grant a Power of Attorney to another person for any case where you cannot represent your own interests. This document gives your Agent the ability to act on your behalf in almost any type of situation that you could think of. The Agent has the ability to sign checks, transfer real estate, make medical decisions and much more. As you can see, this document is VERY powerful, and as such, the authority bestowed with it should only be granted to an individual that you trust beyond reproach. A Durable Power of Attorney, on the other hand, remains in effect if you become incompetent. In cases of terminal illness or permanent unconsciousness, you can set out health care directives for your agent, much like in a Living Will. This document becomes important in the instance where you can no longer act for yourself, or have difficulty doing so. However, you should be advised that this document takes effect immediately upon signing. Most of my clients are under the impression that this document only takes effect if they become incapacitated. That simply is not true.LA Probate Law gives example, you can send an agent to an important meeting you are unable to attend, and they may act on your behalf for the duration of that meeting.


Variety of Estate Planning Documents by LA Probate Law



Responsible Legal Relationship Discussed by LA Probate Law


Responsible Legal Relationship Discussed by LA Probate Law 

Understanding what a trustee is also goes hand in hand with having a thorough grasp of their duties and the powers they wield. This is a fiduciary that is whose responsibility is to oversee the management of any property owned by a trust. Making a wise choice now can save trouble later. When creating an estate plan, you want to minimize infighting among beneficiaries if often a top priority. One good way to do this is to choose a trustworthy, competent fiduciary. "Fiduciary" is a general term for someone you designate to manage your affairs for you in the event of your death or incapacity, such as an Executor or Trustee. Your fiduciary has a special duty to do what is best for you and your estate and must follow the distribution scheme established by your Will or Trust. Your fiduciary should be someone you trust completely explains LA Probate Law.


A fiduciary can be a person or institution that you trust would act in your best interest when you need help. Fiduciaries can include attorneys, bankers, business advisers, mortgage brokers, real estate agents etc. When you plan your estate, you'll need to name several fiduciaries. Your attorney can advise you how to choose the following fiduciaries from among your acquaintances, friends and relatives. The fiduciary duty is a legal relationship, obligation and trust to act in the best interest of the beneficiary. The fiduciary or trustee, must employ undivided loyalty to the beneficiaries concerning all matters related to their trust and will be held accountable if he or she acts adverse or contrary to the interest of this relationship. Unfortunately, while trustees often do an acceptable job of completing basic tasks, conflicts and problems can arise when trustees don't understand where their loyalties should be and how do deal with the complex financial issues that can come with the job explains LA Probate Law. The fiduciary can delegate some of the duties to others, but this depends on the state law as well as the terms of agreement with the trust. This may involve hiring a financial adviser to manage some of the investments or have a property manager to oversee the management of rental property.

Responsible Legal Relationship Discussed by LA Probate Law Trustee

Selecting a Trustee is a vital part of estate planning whenever a trust is used. This person acts as the estate fiduciary and is required to engage in estate settlement proceedings in accordance with directives provided in the last will and testament. A Trustee must be honest, responsible, have a high degree of integrity, and a genuine interest in the welfare of the trust and the beneficiaries. It is also very important that the Fiduciary has experience in the investment of assets and management of property to keep the trust income producing says LA Probate Law. There can never be a conflict of interest between a Trustee and the beneficiary. The law forbids a Trustee from acting in an adverse manner contrary to the interest of the beneficiary or from acting in his own benefit in relation to the trust. Trusts are commonly used by attorneys and financial advisors during the estate planning process. They aid in the distribution of assets, ensuring that everything goes to the correct people and entities. A Trustee needs to be established for every kind of trust. These include living, testamentary, revocable and irrevocable trusts, and irrevocable life insurance trusts. Every type includes a Trustee, Trustor, and Beneficiary. Most trust powers are permissive or “discretionary.” Specifically, the trustee is expected to use her own judgment to determine whether an activity should be undertaken. Required acts are considered “imperative” and must be done, unless the trustee is given grounds for deviating from this obligation.

Cannot Find a Reliable Trustee, Now What?

If for some reason your California revocable living trust has no trustee, the trust itself does not fail. However the vacant position must be filled. If you do not have a trusted individual to appoint, there are many other options available to you. A trust company, bank, attorney, or other professional fiduciary may be the right choice for you. You may be asking yourself what the difference is between individual and corporate fiduciaries. If that doesn’t work, then a trust company can fill the vacancy if the company accepts the trust, and all adult beneficiaries agree. The adult beneficiaries must be receiving income, will receive income, or would receive principal if the trust were terminated. If neither method above works, then the court may appoint one.  An interested person or a person named as a trustee in the trust documents may petition the court.  The beneficiaries many nominate someone. While all fiduciaries are entitled to compensation for the work they do, a friend or family member may choose to waive compensation LA Probate Law. However, the person may be inexperienced in financial management, emotionally tied to the trust distributions, or simply too busy to properly administer your trust or estate. The best way to determine which structure is best for you is to speak with your professional business advisors, including your accountant and tax lawyer as well as any other financial advisors that you might have. Your advisors will be able to work with you to devise the best business structure that will meet your intentions and the needs of the business. 

Responsible Legal Relationship Discussed by LA Probate Law


LA Probate Law: What is Probate Litigation?


LA Probate Law: What is Probate Litigation?


Probate is defined as the legal process of how the debts are paid and assets and property distributed of an individual who has passed away. "Probate" is the legal name given to this process say LA Probate Law. The Will must be verified as the valid, final dispositive statement of the decedent. Often times, the process involves a will and sometimes there is not one available. When a deceased individual's Last Will and Testament is offered for probate, there are many requirements and all heirs and creditors have rights, privileges, and limitations that must be strictly followed. After a person dies, ownership (the legal title) of his or her property, assets and personal effects must be passed on (legally transferred) to the beneficiaries (heirs) listed in the Will. The Will generally names the person or institution appointed to administer (manage) the probate estate process. When there is no valid Will, State law governs who receives the assets of the deceased. The term "probate" is also used in the larger sense of "probating the estate". If there is no Will, the persons receiving assets are designated by State law.

Probate Litigation

Probate litigation involves the laws, codes, and statues that preside over wills, trusts, and the settling of a deceased individual's estate. It often includes disputes among relatives and challenging certain sections, provisions, or the entire Last Will and Testament. The Last Will and Testament can be disputed due to several reasons. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested explains LA Probate Law. The facts of individual disputes define the type of action that needs to be defended or prosecuted. The law of limitation is firmly relevant to probate litigation and even if there is a valid claim, a case will not be preceded by the probate court if the time limit has passed. The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent's property than that he or she actually received. Basic Process of Probate Estate is collecting all probate property of the decedent; paying all debts, claims and taxes owed by the estate; collecting all rights to income, dividends, etc. settling any disputes; and distributing or transferring the remaining property to the heirs.

LA Probate Law: What is Probate Litigation?Probate Process

Nowadays the probate process is a court-supervised process that is designed to sort out the transfer of a person's property at death. The probate process and distribution to the heirs can be as short as 6 months and as long as two to four years depending upon the State laws regarding creditors’ claims, whether there is property to be sold, whether there are tax liabilities, whether there are disputes among heirs, and congestion in the State courts expresses LA Probate Law. The executor of the will or the administrator is given the authority to handle matters of the deceased by the court. The personal representative conducts a complete check of the property in the estate and collects all necessary documents. There are some assets that are non-probate, for example assets held jointly, the ownership automatically passes to the remaining person in case of death of one on of the owners. The inventory check is important to identify all assets and make sure the assets are adequate to cover the debts owed. The payment of creditors is done according to merit and this varies in each area. The will, if available, determines how the property will be divided. If there is no will, the probate laws determine what each beneficiary gets. The document showing that he/she has the authority is used to access any assets held by the deceased. The activities of the personal representative are usually governed by strict rules to avoid misuse of power granted to them.

Probate Administration

The actual court probate process is only a part of the responsibilities of the will's executor. The first duty is to file a petition to start probate in each of the states where the deceased owned property. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate. Because each state has slightly varying probate laws, the answer to the 'what is probate?' question will change a little depending on a specific state's legal code. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and "payable on death" bank accounts). LA Probate Law says a common expression you may have heard is "probating a will." There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it. The movement to avoid probate is primarily motivated by the desire to avoid probate fees.


LA Probate Law: What is Probate Litigation?


LA Probate Law Understanding the Different Types of Wills


LA Probate Law Understanding the Different Types of Wills


A Last Will and Testament is a document which provides for the distribution upon death of the assets an individual and his/her ancestors have accumulated during life. There are many formal legal requirements relating to the creation and execution of a Will which must be followed for the Will to be valid. A proper Last Will and Testament is intended to assist in the administration of one's estate after death says LA Probate Law.

Statutory Will

A statutory will is a very simple will that most probate courts will accept assuming it is executed correctly. The nuncupative will, which is an oral statement subsequently reduced to writing (within a statutory time limit) by the person who heard the testator (person making the will) make the statement. This type of will could be a deathbed statement of intent or a battlefield expression, or the like and is only applicable to nominal or minimal assets of personal property. Here again you would need to consult your state statutes, since the treatment of nuncupative wills varies from state to state.

LA Probate Law Understanding the Different Types of WillsHolographic Will

A holographic will is one that is entirely handwritten and signed by you but is not witnessed or notarized. Most states dislike holographic wills for obvious reasons but will recognize them under specific narrow circumstances. You should note that this form of will is only valid as to personal property and in some jurisdictions it is not recognized at all. Local statutes should be consulted to determine if it is considered valid and in your state and that it meets all of the requirements set out by statute.

Basic Will

A basic Will almost inevitably includes detailing your choice of Executors, who will ensure that your instructions included in the document will be carried out, and the names of any Guardians, who may perhaps take over the parenting of any children you may have, in the event of your early death.

Joint Will

Creating a joint estate plan is an option for you to consider. In many cases a joint estate plan can be bound legally even if you die. The parties make the will together, agreeing to leave their property to beneficiaries identified under the will. Typically, the parties agree to leave their assets to each other, but they can also agree to leave property to third parties explains LA Probate Law. The will dictates what happens to the assets after the second party dies, and can be used by married couples to protect children from previous marriages. It is a testamentary gift document signed by two or more testators. It would be administered on the death of one party as it does not require the death of both parties. It should be noted that if the will is revoked as to one party, it is still in force as to the non-revoking party. 

Mutual Will

A single or multiple documents by multiple parties who have agreed to dispose of their property in a manner agreed upon by all parties. Similar to joint wills, the parties agree to leave their assets to each other, but they can also agree to leave property to third parties. Mutual wills are intended to be irrevocable says LA Probate Law. Joint and mutual wills may not be advisable since these may in some cases disqualify the property for a marital deduction. A type of mutual will in which each spouse names the other as the beneficiary of his or her property. In this case a couple will draft separate wills containing the same information, resulting in their property being left to each other. In some states, there are accepted rules under the law of contracts where a party may contractually agree to do or not to do something in his will, inconsideration for anther's promise or other consideration. Because of variance in recognition and procedure, you should check your local statutes relating to mutual wills and their contents and the requirements of independent contracts to make a will.

Property Trust Will

If the focus of your Estate lies solely on your property, it may be worth your while considering the prospect of preparing a Property Trust Will. With care home fees continuing to soar, this type of Will is becoming more common, as many elderly individuals are forced to consider selling their home to pay for nursing costs. Alternatively, if you have remarried and it does not necessarily follow that your children will receive the benefits of your Estate, this type of Will gives you greater control about what should happen with the proceeds from the sale of your home.

Mirror Wills

If you would prefer to include your spouse or partner in your Estate planning, passing your assets to them in the event of your death and vice versa, then this can be reflected in the production of Mirror Wills. These generally indicate that if either of you dies, the entire Estate will be passed to the other, with subsequent beneficiary instructions coming into play on the event of their death.

Clauses within a Will

There are five main parts to a will, each containing specific clauses describing the administrator of the estate, legal powers, witnesses, distribution of assets and other important information. LA Probate Law gives a brief summary of each section along with a description of the clauses within each section. There's a lot of flexibility as to what you put in a will. However, much of the language used in all wills is standard. There are certain elements that need to be included for it to be valid and legal.


LA Probate Law Understanding the Different Types of Wills



LA Probate Law Protection from Robbery of Probate


LA Probate Law Protection from Robbery of Probate


When someone dies and leaves behind money or property, a probate court appoints an executor to oversee the estate and distribute the assets to the heirs. Unless waived, a personal representative is required to render an accounting prior to distributing any assets. If you believe that the personal representative is not being truthful, an interested party is entitled to challenge the proposed accounting and even force disclosure of financial records says LA Probate Law. If you believe the executor is stealing from the estate, you have the option of filing charges against him. This can be a difficult task, since many prosecutors are unwilling to take on what they perceive as a family matter. Many lawyers recommend settling the issue in civil court, but this won't do much good if the money's already gone. Accounting for missing assets is going to depend on proof and possession.


Organized Crime has a Procedures Manual for destroying families and stealing their estates. It’s NOT pretty.  Knowing how these crimes work will help you to protect yourself and your loved ones. Many people report very similar experiences. For the most part, there is no single crime called “fraud.” However, fraud is an intrinsic part of a number of offenses, most notably those in the theft category says LA Probate Law. The early theft crime of larceny required a taking of property from the possession of another; therefore using deceit to take the property of another that had been entrusted to the offender was not punishable because it was not larceny. Take your evidence to the police department and to the district attorney's office if you decide to file criminal charges. Sign a complaint against the person you believe is stealing from the estate. Keep in mind that many prosecutors are unwilling to prosecute estate-fraud cases, especially when the executor is a family member of the deceased.

LA Probate Law Protection from Robbery of ProbateImpersonations

Probate instruments such as wills, trusts, guardianships and powers of attorney are being used to redistribute property in a manner contrary to the intended wishes of hard-working Americans. These are folks who mistakenly take the "bait" put forth regarding estate planning documents. Lawyers are the first to extol the need to avoid "the high cost of probate" or "government intrusion" as well as to protect one's estate from "greedy heirs and lawyers." During this process, however, the real "switch" potential is rarely discussed. Property fraud happens in many ways, but typically a fraudster will impersonate a homeowner and forge documents to try to persuade Land Registry to transfer the title into their name. They then use the property to raise a mortgage from a bank – and disappear with the money expresses LA Probate Law. Identity theft occurs when someone appropriates another's personal information in order to commit theft or fraud. The Federal Trade Commission collects complaints about companies, business practices, identity theft, and episodes of violence in the media. In fact, fraudsters often target properties where the owner is absent – for example if the owner is a landlord, lives somewhere else for part of the year, is in residential care, or has died leaving the property held in trust.

Inheritance Rights

Inheritance rights advocates are not necessarily lawyers or other associates of the legal community. Estate disputes should be moved from civil to the criminal venues in which they belong and where appropriate punishment can be applied. Legal professionals, their associates as well as government officials (often with a background in the legal profession) know the realities, but the lucrative status quo provides no incentive for change. Government will take the side of the people only when the people demand it and re-election may seem in peril. While this causes some to discount our opinions and perspectives, our credibility comes from personal experience and knowledge that the average person in no way understands the growing threat facing their lifelong accumulation of assets. Public policies regarding our probate systems must be reviewed. The culture surrounding probate and other applicable venues must also be changed. Attorneys and judges must face real accountability and consequences for misconduct.

Reporting Fraud

Fraudulent activities should always be reported to your local law enforcement office. The following is additional information on how specific types of fraud complaints or cases of suspected fraud can be submitted to federal agencies. The report of elder financial exploitation should be made to each state's adult protective services, which can be accessed by the eldercare locator website says LA Probate Law. Protect your loved ones by creating a living will that allows you to express your preferences about medical treatment and end of life important decisions in the event you are unable to communicate them. A living will lets you specify decisions about artificial life support in advance. It not only ensures your wishes will be heard, but also protects your loved ones from having to make these difficult, deeply personal choices for you. We also emphasize that tweaking the documents ("amending" the documents, in legalese) is very easy and very inexpensive, assuming that the change is not overly-complicated. Hire a lawyer to file a lawsuit if you decide to prosecute the matter in civil court. Choose a lawyer who specializes in probate matters. Keep in mind that even if you win the lawsuit, you won't get any money if the executor has no assets and has already spent the stolen money.


LA Probate Law Protection from Robbery of Probate


LA Probate Law: Out of State Probate


LA Probate Law: Out of State Probate


It is not unusual for out-of-state heirs, devisees, trust beneficiaries, or even personal representatives named in a decedent's will to find themselves with significant responsibilities or interests with respect to the administration of a California estate or trust. In this modern age, it is not unusual that family members have traveled far from their loved ones. In some instances, the distance makes it a challenge to administer the loved one’s estate. In other instances, the distance is not important and you can manage all the important details remotely. LA Probate Law has experience assisting local families as well as those from distant states. Aside from this, most documents filed with the probate court require an original signature of the Personal Representative, so faxed or emailed signatures won't do. Thus, the closer the Personal Representative is to the attorney, the more quickly things will get gone. 


Different time zones can create confusion and difficulty, we go the extra mile to ensure needed information is on hand and available. When necessary, we work with forensic accountants and CPAs to locate assets, bank accounts, and protect our clients. Our attorney can act as your representative in probate court. Your rights as an heir or your responsibilities as a personal representative need not be compromised simply because you live far away, nor will you find yourself shuttling back and forth to sign papers or appear for routine court hearings. Our use of technology means that you can stay just as fully engaged and informed about your case from anywhere in the world just as effectively as you would. We may be able to resolve your problem on favorable terms without the need for you to return to California at all. For all practical purposes, the more beneficiaries involved, and the farther away they live from the attorney handling the estate, the longer probate will take. This is simply a function of the time it takes to send documents to, and receive documents back from, multiple beneficiaries says LA Probate Law.

LA Probate Law: Out of State ProbateDelay Causes

Some common reasons people, who live elsewhere, hire us to do legal work are: 1) mom/dad/relative/friend died in an area you do not live and you need a probate attorney there to handle that for you and 2) your mom/dad/relative/friend lives here and you want them to hire a local attorney to handle their estate planning affairs before they die. In either case we are well suited to help you! If the estate is taxable it is most likely going to take longer to probate than a nontaxable one. This is because a taxable estate can't be closed until a closing letter is received from the state taxing authority and/or the IRS. And these days I've waited anywhere from 6-8 months after filing an estate tax return with the IRS before receiving any type of response. It's highly unlikely that two beneficiaries will agree on everything let alone 3 or 4 or more. Some beneficiaries may even hire their own attorneys to monitor the probate process, and these types of attorneys tend to nitpick at every single thing that the Personal Representative does. LA Probate Law expresses that the more the beneficiaries disagree, the longer probate will take.

Probating Multiple States

Many people own more than one home—a vacation home, a second home, or perhaps a rental property.   Generally multiple properties don’t have an adverse effect on the probate process, but if a person dies with property in more than one state, and with title held in his or her sole name, then estate administration can become much more complicated than it already is. One common question of multi-state probate is if there is property owned in more than one state, which state law applies to probate of the estate? The answer is that real estate is governed by state laws, and won’t necessarily be the same as the laws governing the probate in the Primary Probate State.  The probate process is almost always complicated, but with multiple properties in multiple states the complications can increase exponentially. The guidance of an experienced probate attorney will help you to streamline the process as much as possible.

Possible Complications

A will contest is a legal proceeding that's initiated to invalidate a Last Will and Testament. Will contests are based on four arguments: (1) the Last Will was not signed with the appropriate legal formalities; (2) the Last Will was procured by fraud; (3) the Last Will was procured under duress and undue influence; and/or (4) the person making the Last Will lacked mental capacity to do so. Suffice it to say that if a will contest is involved, then the probate proceeding will remain open for a very long time. If the estate is comprised of a house and a bank account, then probate of these assets should be relatively simple explains LA Probate Law. But if the estate is comprised of a house, a bank account and an interest in the family business, then the administration of the estate can get complicated. Keeping all of these factors in mind, if everyone gets along, the assets aren't complicated and the estate is nontaxable, then the probate process should take less than a year. But if not, then the probate process can drag on for several years.


LA Probate Law: Out of State Probate


LA Probate Law on Financial Elder Abuse

LA Probate Law on Financial Elder Abuse

The improper use of an elder’s funds, property or assets constitutes financial exploitation or abuse. An exploiter can be an individual, an institution, or even someone who has power of attorney for the elder. Assets must normally be recovered through a civil lawsuit or action. In some instances, the probate court has expedited procedures that allow asset recovery for the victims of elder abuse. If the victim is not able to protect himself, the probate court is empowered to appoint a conservator to pursue asset recovery. Interested parties such as heirs and beneficiaries are also entitled to seek court intervention. LA Probate Law has substantial experience with elder abuse and has recovered hundreds of thousands of dollars stolen assets for elders. Obvious examples of financial exploitation include cashing an elderly person’s checks without authorization; forging an older person’s signature; or misusing or stealing an older person’s money or possessions. Another example is deceiving an older person into signing any contract, will, or other document. If you find your loved one in trouble, please contact us immediately.


Prevention and Symptoms of Abuse

Anti-money laundering measures that should intercept stolen assets are not fully or effectively implemented. If corrupt leaders and officials never had the chance to deposit stolen assets into a foreign financial system in the first place, there would be no need for recovery! The obstacles may sound daunting, but we must not lose hope. In recent years, some countries have made asset recovery more of a priority and taken important steps towards overcoming the barriers says LA Probate Law. There is clearly room to improve the stolen asset recovery process, which is important as nations rebuild and pursue a course of transparency and economic growth. When jurisdictions work together to overcome the obstacles, stolen assets can be returned to the citizens to whom they rightfully belong. Symptoms of financial exploitation may include; sudden bank account changes, especially an unexplained withdrawal of large sums of money when accompanied by another; the provision of substandard care despite adequate finances; additional unexplained names on an elder’s bank signature card; sudden transfer of assets or changes in a will; disappearance of funds or valuable possessions; and an elder’s report of financial exploitation. The best prevention is perhaps the simplest, but it's hard for many busy people. Check in regularly with the older person. Reducing isolation is the number one thing to do.

LA Probate Law on Financial Elder Abuse What to do if You know a Victim?

If your loved one is the victim of a crime, you should contact the authorities immediately. Please be warned, however, that in these situations you should also consult with a private attorney. Frequently governmental agencies do not have the resources to investigate the problems or will limit their investigation if they deem it a civil matter. Frequently, governmental agencies will stop their investigations if the abuser is “slick” or can convince the authorities that his actions are legitimate. LA Probate Law has frequently worked in conjunction with agencies such as Adult Protective Services to help victims of elder abuse. We also have substantial experience helping clients when governmental agencies have not or cannot help. Recovering assets from an elder abuser is like closing the barn door after the horse has bolted because you have to chase down those elusive assets.  Constructive trust actions, however, can help to bring the “horse” back into the barn, or often times, more importantly, recover assets that were purchased with the elder’s stolen money or property. Courts have found the remedy appropriate even in those circumstances where the money obtained from the elderly victim was later used to buy new property. Not only is the wrongfully taken property subject to a constructive trust, so is any subsequent property purchased with those assets by the elder abuser.  Now that’s a horse of a different color.

Asset Recovery

Financial assets controlled by an elderly person are often vulnerable to fraud and other forms of financial abuse by criminals and even unscrupulous family members.  Financial elder abuse can take many forms, including the relinquishment or transfer of assets under duress, theft of monies, pension or retirement check conversion, or withholding from the person the funds he or she needs to live.  The legal tools and procedures used by jurisdictions are not all the same. Law enforcement, prosecutors and investigating magistrates have to know how to navigate the laws of other countries and be prepared for a lengthy campaign. Taking a broader perspective, the note briefly reviews third party approaches to asset recovery and their implications for the asset recovery regime. LA Probate Law says that includes: transnational criminal approaches, human rights approaches and third party civil litigation. Developments in this area are unlikely to be driven through a negotiated process in the framework of international agreement. Instead, alternative avenues will be opened through the decisions of national authorities, judiciaries and activist litigants. Cases following human rights approaches are currently before national and regional courts. Financial abuse can rob a senior of self–esteem and trust, as well as of his or her means of subsistence. Although financial exploitation does not leave physical scars, it is a serious and shameful crime. If you or your elderly relative has been a victim of financial abuse, we would like to be of assistance.

LA Probate Law on Financial Elder Abuse

LA Probate Law on Estate Planning Preparations

LA Probate Law on Estate Planning Preparations

Experiencing death in the family is a difficult reality. You've almost surely been through that, if not with parents, certainly with grandparents. What will happen when your death is the difficult reality facing your family? Part of holistic retirement planning is preparing for the end of your retirement- your death-and what impact that will have on your family explains LA Probate Law. Estate planning is providing for the desired personal, economic, and legal consequences in the accumulation, conservation, and distribution of your property. Such issues involves guardianship of minor, administering the estate, disability, premature death, protection from creditors, protecting the best interest of children, and others crop up at real times when planning for estate management is prepared. Federal taxes, gift, income, estate as well as the generation skipping taxes are other issues involved in the process.

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What do I Need to Include in My Estate Planning?

Estate Planning involves sensitive decisions and legal matters. It would only be beneficial if the person will always consult with legal advisors and also seek financial and medical advice. It is important that before a person will enter into estate planning, he should already have a strong understanding of the process so that things will not be difficult for those who will be left behind. Estate Plans may include wills, power of attorney for health care, living wills, living trusts and limited partnerships. A LA Probate Law attorney will be able to answer legal questions regarding the estate and they will also be able prepare the person on the cost of the estate plan and other finances the come with it. When entering into a contract, it is very important to make use of the services of a lawyer. Lawyers are the only certified people who practice these fields. They are also the only ones who can supply a person with all the legal requirements and advice needed in the estate plan.

LA Probate Law on Estate Planning PreparationsAccounting for Your Assets

One of the first steps that needs to be taken when creating an estate plan is making an asset inventory. Your assets include your investments, retirement savings, insurance policies, and real estate or business interests. LA Probate Law wants you to ask yourself three questions: Whom do you want to inherit your assets? Whom do you want handling your financial affairs if you're ever incapacitated? Whom do you want making medical decisions for you if you become unable to make them for yourself? If you own a business with others, you should have a buyout agreement. Naming a beneficiary for bank accounts and retirement plans makes the account automatically "payable on death" to your beneficiary and allows the funds to skip the probate process. It's best to go through this process with a professional advisor so you can be advised how current federal and state laws may affect your estate upon your death. After you, add up the value of your home, personal property, investments, life insurance benefits and retirement accounts you may be surprised to find that your estate reaches into in the taxable category.

Why Everybody Needs a Will

One of the facts of life is that each individual arrives on this planet with empty hands and leaves in the same manner leaving behind assets gathered over a lifetime. Everything that the individual earns in terms of property, money, estate, amenities etc is left behind for his successors says LA Probate Law. Will writing is a document prepared by an individual which states how the property and the estate would be distributed amongst the loved ones after his death. Each individual expects an equal share of the wealth and estate, if not more. In case of no will, the law itself hands over the responsibility to an individual to ensure that the distribution of the wealth and property is carried out in an equitable and just manner. There is every chance that all your property and estate might well end up in the custody of the government. This usually happens when the individual did not have any relatives and did not have the good sense to engage in a will writing exercise and passed away without bequeathing his property. The process of will writing not only delineates the distribution of your estate, but it also has your last wishes printed inside. Many individuals mention whether they would like to be cremated or buried after death. Some individuals also like to donate to charity after their death. There are also a few individuals who wish to donate any of their body parts immediately on death to benefit someone in need.

Why do I need to Create a Trust?

Having a trust can be beneficial if you have a minimum net worth of $100,000 and meet one of the five following conditions. First is that you have relatively large assets in an art collection, business or real estate. Second is that you want your assets to be given to heirs on certain conditions. Third is that you want your spouse to benefit from the assets but also want other heirs to inherit it after the spouse's death. Fourth is that both your spouse and you want to ensure maximum exemptions from estate tax. Fifth is that you have a relative who is disabled and you would like to provide for him without disqualifying him from medical assistance. Depending on which of these five conditions you satisfy, you can select from the different types of standard trusts available.

LA Probate Law on Estate Planning Preparations

LA Probate Law: Mistakes You Don't Want to Make With Your Estate Plan


LA Probate Law: Mistakes You Don't Want to Make With Your Estate Plan


A good estate plan is usually designed to deal with multiple contingencies and does not necessarily have to be updated regularly. However, if there have been any major life changes since you prepared your estate plan; it might be wise to have it reviewed LA Probate Law. Major life changes that warrant a reconsideration of your estate plan include a marriage, divorce or purchase or sale of real property. If you need to create an estate plan, it is helpful (but necessary) to complete our estate planning questionnaire. If you have an existing estate plan, bring it with you at the time of your appointment. We are experienced estate planners and can guide you through the process quickly and efficiently. We will listen to your desires, evaluate your needs and make recommendations appropriate for your circumstances. Contact our office to schedule an appointment. 

Planning with Help

We can't count the number of people who think it's fine to write their own Will. Or equally as bad, they'll download a do-it-yourself form off the Internet. Estate planning is a complex legal area that is governed by a whole host of rules and regulations. Whether or not an impaired individual can create an estate plan depends largely on their type and level of impairment. If the person is making decisions about managing their affairs before death, the impaired individual also needs to be able to appreciate the potential consequences of his actions says LA Probate Law. If you have the wrong form, if it's not signed in the right place or if you've somehow missed something else along the way, there's a good chance that your homemade Will won't be honored and a judge will decide how your estate is distributed. Your Will and other estate planning documents won't do anyone any good if they can't be found. Getting organized means gathering up all those important documents and putting them in a safe and accessible place. Tell your loved ones where that place is and make sure to include things like the location of the key for your safe deposit box, your bank account numbers and other pertinent information that your family might need after you're gone.

LA Probate Law: Mistakes You Don't Want to Make With Your Estate PlanTake Charge

Many people prepare estate plans which allow trusted individuals to take charge of their affairs when they are no longer able to do so. Most living trusts contain provisions for the appointment of a successor trustee in the event of incapacity says LA Probate Law. Likewise, a power of attorney is commonly used for estate planning purposes authorizes an attorney-in-fact (or agent) to act only when the person who signed it is incapacitated. The specifics about whether you can exercise legal control over a loved one’s affairs after incapacity, and how you exercise that authority, depend on the terms of the particular estate planning document. For instance, some estate planning documents require a medical opinion from two doctors. Others estate planning documents require that the drafter be deemed incompetent by a court. The parties can also use a resignation and appointment procedure if the elderly person will consent. The main reasons that people put off making an estate plan are: they think they are too young, they are healthy, they can't afford it, fear of death, or indecisive. If the thought of creating a plan is overwhelming, start small. Create a list of your property. See how it is titled, what the fair market value is, and the amount of debt against it. Once it's set up, review it routinely to make sure it still meets your goals.

Assets Keeping Up to Date

The Will you created ten years ago is probably not the Will you need today. Let's face it: there will be changes and they will occur in 3 areas: the law will change, your circumstances will change and the attorneys advice, which is always dependent on the law and your situation will, of necessity, change. Keeping your estate plan updated is an important part of creating it. You want to be sure that your plan always reflects your estate and your most current wishes. Adding a party on an asset generally gives the new person some level of power and control over the asset. For instance, once on a bank account, the new individual has power to transfer or remove all of the assets. Placing a friend or family on the asset makes the asset vulnerable to the friend’s creditors. Finally, including family or friends on assets can also create unintended tax consequences. LA Probate Law has encountered a number of situations where families make asset transfers only to later receive bad news that they have been penalized by the taxation authorities. Most importantly, seeking the expertise of an elder law attorney is crucial because simply put, estate planning is a complicated process. Probate attorneys spend years learning all the intricacies of elder law, with the goal of providing the best possible legal and financial advice; so do yourself a huge favor and let them do their job! You can still be actively involved in the process, but you'll also have the assistance of an expert to explain and simplify the complex issues -- the ideal way to ensure your long term wishes are met in the most professional and precise manner possible!


LA Probate Law: Mistakes You Don't Want to Make With Your Estate Plan


LA Probate Law: How Inheritance Scams Work


LA Probate Law: How Inheritance Scams Work


Inheritance scams usually contain offers of huge amounts of money which was transferred under your name by a deceased person whom you haven't even heard of. Despite the unbelievable story, there may still be people who became victims of this type of fraud says LA Probate Law. Instead you received this contact as part of a mass mailing sent all across America to people who share the same last name as yours. Each one of these folks is told there is cash from inheritances that have been located in their names. The research specialists make money by asserting they've put together an estate report that includes information on where the inheritances are located and how they can be claimed. For a relatively small fee, say around $30, you can receive this report. They may also propose to administer your inheritance claim for you, for another "small fee". 


The great fantasy everyone wants to come true: You receive an email from a lawyer, barrister or bank employee stating a long-lost relative you've never heard of has died. The email goes on to say that after an exhaustive search, you are the only known living heir to your long-lost relative's fortune. Congratulations, you're a MILLIONAIRE! But first, you need to pay the international transfer fee, a bank holding fee or cover some legal expenses and the money is yours!. All you have to do is fax your identification or a bit of personal information (social security number, bank account number and bank routing number, etc.) or simply reply to the email with your information. This is the most common opening for a con known as the unclaimed inheritance scam expresses LA Probate Law. Have you ever wondered who falls for email scams: "Help me get money out of Nigeria; I just need your bank account information?" The answer may be: people with dementia. Dementia is a gradual cognitive decline caused by underlying damage to the brain. Alzheimer's is the most common type. People understand that someone with a physical disability -- a blind person or someone in a wheelchair -- might be targeted for robbery. As a society, however, we have not fully realized how people with brain disorders might also be at high risk of victimization. Fortunately, family members, legal and medical professionals, psychologists, governments, and financial advisors can all help protect vulnerable people from exploitation.

LA Probate Law: How Inheritance Scams WorkContinuous Credit Card Charge

You are told that if you pay for the postage you will get a free CD. Naturally you must put your credit card details in for the postage. The CD arrives and is a total load of rubbish. Lo and behold charges start coming in every month - as much as $150! You search the sales letter, print it off and find buried in page 23 there is a note that if you don't cancel within 30 days you will be charged $xx each month. The phone number goes on to message and the messages you leave are never returned...and your credit card keeps getting charged. How you cancel after 30 days is a mystery as you can't get hold of anyone. This may be described as a fee for being named the relative, clearing payment, or any other number of excuses states LA Probate Law. The stories told by the scammer can be quite elaborate and they will go to great lengths to convince you that a fortune awaits. This includes sending you a large number of seemingly legitimate legal documents to sign, such as power of attorney documents. In some cases the recipient is invited overseas to examine documents and the money. The scammer will often organize an elaborate charade, complete with a safe full of money for anyone who takes up the offer.

How to Protect Yourself

Many kinds of professionals can help protect those who are vulnerable, and help loved ones and caregivers understand their options. Governments keep track of common scams and frauds - check with your state. Your protection is to delete the message and do not respond. If you reply then the thieves know your address is a genuine one. Do not click on any links they provide. You could be clicking to a site that may have a virus, spy-ware or just a place that you are giving your details to thieves who will then have access to your account details. A way to identify them as a scam is by how you are addressed...usually 'dear customer' or 'dear account holder'...inheritance and donations may be 'my dear' and 'my beloved'. Remember, if an offer appears too good to be true, it probably is. Avoid disclosing personal or financial information. Don’t share personal or account information such as account numbers, check card numbers, Social Security numbers, or any other sensitive information with strangers. Pay close attention to whether or not any investigations have or are currently being conducted against the firm, or people representing the firm, making the inheritance location offer. If you are concerned contact the sender direct who will be able to put your mind at rest.Prior to sending any money to those claiming to be an "estate locator", double check with relatives about any recent deaths in your family. Also research the people and/or firm in question says LA Probate Law. Run their names by the Better Business Bureau, your state's Attorney General's Office and the U.S. Postal Inspection Service.


LA Probate Law: How Inheritance Scams Work


LA Probate Law: How Does Trusts Work?


LA Probate Law: How Does Trusts Work? 

You have worked very hard during your lifetime and it is only natural that you would like to leave a legacy to your loved ones. It would be wise to find a way to retain some control over the assets. No one wants the IRS, creditors or even a divorce to prevent loved ones from enjoying the benefits of your legacy. Even if you are a person of modest means, you have an estate. Over the last two decades, the popularity of Living Trusts has skyrocketed. No longer is a tool just for the rich, Living Trusts one of the most common estate planning tools in use today states LA Probate Law. This legal arrangement, usually drafted by an estate attorney, creates a separate entity called a Living Trust. A Living Trust is called that simply because it is created while you're alive (as opposed to a "testamentary" trust created after death). 

What is a Will?

A will is a document that directs the distribution of the property owned by an individual at the time of death. A will is an essential back-up device for property that you don't transfer to yourself as trustee. To be effective, a will must be executed according to your state's statutory requirements. For example, if you acquire property shortly before you die, you may not think to transfer ownership of it to your trust -- which means that it won't pass under the terms of the trust document. But in your will, you can include a clause that names someone to get all of the property that you haven't left to a specific beneficiary says LA Probate Law. Generally, it must be in writing, signed by a person of sound mind and by competent witnesses. It can be revoked or amended at any time during your life but, any change to the will requires that both you and your witnesses sign again. After your death, the executor you have chosen must petition the court to start a probate process. As part of the process, your property must be valued for estate taxes. A will is a good start but may not be the end of the process. A will sometimes stands alone and sometimes works in conjunction with a trust. The probate process can range from six months for a small uncontested will and can last for years if there are delays in the court proceedings. A will contains instructions to the probate court about how your loved one wanted his assets distributed after death. A will does not, however, deal with non-probate assets which will be transferred without reference to the will.

LA Probate Law: How Does Trusts Work?What is a Living Trust?

In a living trust, the grantor transfers the assets to the trust but can retain the power to manage or revoke the trust. The Living Trust document itself names three different parties. The individual (couple) that establishes the Trust is named the Grantor (referred Trustor). The Trustee is the person named by the Trust as the controller of the Trust's assets says LA Probate Law. The trust also allows the grantor to decide who will be the successor trustee and the beneficiaries of the trust after death. On the receiving end, the Beneficiaries are the heirs that will benefit from the Trust once the Grantor's have passed away. If you are serving as your own trustee, the trust instrument will provide for a successor upon your death or incapacity. Therefore, upon death the court does not need to intervene and no probate is required. Almost anyone with an estate of $100,000 or more can benefit from having a living trust. Estates of $100,000 or more are often subjected to probate in their state of residence, which can cost anywhere from 2%-4% of the estate's value in court and legal fees. A trust can also be beneficial if you are disabled by accident or illness; the successor trustee can manage the trust property without a lengthy court proceeding.

What should I Use?

A will is easy to establish, it requires minimal time and money but may leave your loved ones with a heavy burden due to court proceedings. A trust is more sophisticated than a will and enables you to accomplish much more than a will but do not overlook the fact that it involves more upfront effort and expense. Even with a trust, it is important to remember that there still may be times where it is necessary or advisable to commence a probate proceeding. After reviewing your estate planning documents, we can help you determine your next steps including whether or not to file a probate proceeding. The process is usually commenced by sending a notice of administration to relatives and beneficiaries says LA Probate Law. A trust, however, allows you to establish provisions for that allow you to feel peace of mind and know that although you are no longer with your loved ones, they will enjoy your legacy exactly the way you intended them to. When choosing between a will and trust, remember that one size does not fit all. What is right for one person may not be right for everyone. Consult your attorney; your estate plan should be prepared in a way that best meets the needs of you and your family. A trust is different from a will in that it usually allows for the private distribution of assets.

LA Probate Law: How Does Trusts Work?

LA Probate Law: Average Time for Estate Administration

LA Probate Law: Average Time for Estate Administration


When a person dies, their estate must be dealt with and transferred to the beneficiaries. This is necessary by law. If the deceased individual did not have a will in place then the law will deal with the estate administration through the rule of intestacy. The process of dealing with a deceased individual's estate and assets is known as 'Estate Administration.' The procedure will most frequently begin with an application for what is known as a 'grant of representation. The probate administration process usually takes a minimum of eight months and can sometimes take several years. LA Probate Law has found that 65% of the estates were closed in less than 12 months. The average time for estates was 11.6 months. The administration process can be delayed by numerous problems including (i) contests over the will, (ii) contests over appointment of the administrator, (iii) creditor claims, and (iv) accounting issues. The earliest that an estate may be closed and distribution made to the heirs or beneficiaries is approximately six (6) months after the opening of the estate. However, it is unusual for all administrative duties to be finalized within that period of time.


Belongings to Be Dispersed

Probate is by no means a simple process. There are many different factors emotionally, financially and logistically that can cause difficulties and delays throughout the process of probate. A personal representative distributes assets only after petitioning the court for approval to do so. By forcing the a personal representative to file a petition, the court insures that the personal representative has followed all the required steps including asset gathering, notifying and resolving creditor issues and accounting. A personal representative is required to give all interested parties notice of any petition to distribute. LA Probate Law are experienced with all aspects of the administration process and can tell you whether a delay is reasonable or the result of delay by the personal representative. If appropriate, we can force change and even remove a lackadaisical personal representative. If a deceased person's estate is below the statutory minimums, certain summary procedures may be followed which eliminate the necessity of full administration and the appointment of a personal representative. Probate length varies, all too rarely is probate clean cut and dealt with in a short space of time. The average length of time for probate to complete from start to finish is between six to nine months. Obvious delays occur through the mourning period but there are other factors that can cause a delay in proceedings. Any individual who believes they have a right to claim for the estate has six months from the deceased passing away to make a claim.

LA Probate Law: Average Time for Estate AdministrationPostponements

The post-death administration process rarely moves as quickly as the survivors would like. We are experienced with all aspects of the administration process and know how to focus the process to reach your goal as quickly as possible. Some delays in the estate probate administration process are a natural product of court proceedings. The complexity of the estate can require that the personal representative follow procedural steps before distributing assets to heirs. Some court delays, however, arise from claims and contests between the heirs or other interested parties. Usually, the best method for resolving these procedural hurdles is through effective negotiation and compromise. Other delays in the probate estate administration process result from an administrator not properly discharging his duties says LA Probate Law. A personal representative is charged by the court to engage in timely and orderly estate administration. Whether an administrator is not acting in a timely manner depend on the circumstances and nature of the estate. A personal representative who fails to perform his duties in a timely manner can held accountable and sometimes sanctioned by the court. Talk to friends, relatives, business associates, or someone you believe has been an executor to find whether they have any experience with an attorney they can recommend.


Estate administration can be a very emotional undertaking for the families of the deceased. It can be very stressful trying to deal with their loss at the same time as trying to deal with estate administration. That is why I would always advise individuals dealing with estate administration to seek professional help in the form of professional solicitors. Challenging as it may be, especially with the loved one's refusal to go along with the best possible choice for them and their situation, we know we have to make the best choice for them and then live with that choice. Often guilt can accompany these difficult decisions, especially if these decisions went against the will of the loved one. Family members, too, will have differing opinions than you do, which further adds to the stress, confusion, and frustration. It also fuels some mighty powerful fights. Suddenly you find yourself in need of direction and guidance. Sometimes you just need a strong shoulder or a willing ear. This can come in the form of a best friend, trusted sibling, counselor, or a therapist, which I would highly recommend to keep you on track and healthy. You should ask a LA Probate Law attorney you are considering what experience he has in probate. If your loved one is still living, but you have come to the inevitable crossroads of making difficult decisions about assisted living, long-term care, etc., the emotional pressure and exhaustion can be enormous to see everything is well planned and carried out.

LA Probate Law: Average Time for Estate Administration

Grounds for Contesting a Last Will and Testament Explained by LA Probate Law


Grounds for Contesting a Last Will and Testament Explained by LA Probate Law


In order to challenge a will, the opponent must have standing and must establish grounds for the challenge. If successfully contested, a will may be rejected by a probate court. If a person's last will and testament is declared invalid, the decedent's estate will pass according to the laws of intestate succession, and all property will be distributed as if the decedent had left no will. Unfortunately this is an increasingly popular form of elder abuse. Unscrupulous parties will frequently convince an elderly or incompetent person to write an estate plan, or change their existing one, to make the unscrupulous person the beneficiary of the elderly person’s estate. Sometimes the victim is convinced to sign a deed or transfer assets. What is not commonly known (even among many estate planners) is that certain estate planning decisions are presumed fraudulent under law. LA Probate Law is familiar with statutory presumptions and have challenged numerous estate plans on the basis of fraud, forgery, undue influence and impaired capacity.


Showing Improper Execution of the Will

What amounts to proper execution, or signing, of a will varies from state to state. Thus, the requirements for showing that a will was improperly executed will depend upon the state law of the jurisdiction. A person "falsely makes" a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof explains LA Probate Law. For example, the testator may not have signed the will, or the testator's signature may not have been properly witnessed pursuant to the statutory requirements. If a will was not properly executed, it may be susceptible to a successful will contest. The intent must be to defraud another, but it is not requisite that any one should have been injured. It is sufficient that the instrument forged might have proved prejudicial.

Grounds for Contesting a Last Will and Testament Explained by LA Probate LawProof of Fraud

With respect to fraud, it must be shown that the testator relied on false statements in making or changing the will. Generally, this means showing that a beneficiary under the will led the testator into an erroneous belief concerning the disposition of his or her property and that the testator changed his or her will in reliance on that false representation. The best strategy is almost always to challenge these arrangements while the victim is still alive. Upon an appropriate petition, the probate court is empowered to void asset transfers and cancel estate planning documents that were created improperly. Forged Wills can arise from family problems, as do the other kinds of disputed Wills.  In these situations there may be nobody to challenge the Will or make a claim regarding the true wishes of the deceased says LA Probate Law. In order to contest a will on the ground of undue influence, it must be shown that the testator's free will was destroyed and, as a result, the testator did something contrary to his or her true desires. It does not have to be shown that the testator was of unsound mind to prove undue influence. Undue influence is a separate ground for contesting a will.

Burdens of Proof

It is usually the duty of the proponent of a will (i.e., the person asking that the will be accepted for probate) to prove that the essential statutory elements of a proper will have been met. By being the party asking for a change in the present situation, you will have the burden of convincing the Court that you are right and your opponent is wrong.  Consequently, all your opponent has to do is wait for you to fail to make your case, to make a mistake, etc., and they will have won.On the other hand, in some jurisdictions, the testator is presumed to have been of sound mind, and the burden will be on the opponent of the will to prove unsound mind. Additionally, it is usually the burden of the opponent of a will to prove fraud or undue influence. Usually, the essential statutory elements include, at the least, proper execution of the will and sound mind on the part of the testator. Thus, where the statutory elements include those requirements, the burden of proving them are on the proponent of the will.


A person must have standing to contest a will. This means that the person must have some beneficial interest that would be lost if the will were allowed. Assets must normally be recovered through a civil lawsuit or action. In some instances, the probate court has expedited procedures that allow asset recovery for the victims of elder abuse says LA Probate Law. Usually, this means the challenger would stand to inherit, or would inherit more, if not for the contested will. State laws vary concerning when a will may be challenged; however, in most jurisdictions, a will contest may not be commenced until after the testator has died. If the victim is not able to protect himself, the probate court is empowered to appoint a conservator to pursue asset recovery. Interested parties such as heirs and beneficiaries are also entitled to seek court intervention.

Grounds for Contesting a Last Will and Testament Explained by LA Probate Law

Elder Financial Exploitation Discussed by LA Probate Law

Elder Financial Exploitation Discussed by LA Probate Law

This crime involves illegal and improper use of a senior citizen's funds, resources and property. Recognizing this crime is easy; however, they mostly happen within the family. Unless other parties observe and get involved, these crimes will go unnoticed. Oftentimes the people who prey on the elderly are family members, neighbors, or caregivers whom the senior trusts and depends on say LA Probate Law.  Elder financial abuse is typically committed by a person the elder knows and trusts, such as a family member, friend, caregiver, banker, or nursing home employee. Undue influence, coercion, isolation and manipulation are all weapons used by perpetrators to carry out this abuse. Manipulation may come from more than one individual. A conspiracy to manipulate an elder may develop. Elder financial abuse is not only a crime, but invokes a civil cause of action as well. There are many remedies to stop financial thefts and this article will discuss a powerful law that protects elder victims through civil litigation.



Indicators are signs or clues that abuse has occurred. Some of the indicators listed below can be explained by other causes or factors and no single indicator can be taken as conclusive proof states LA Probate Law. Rather, one should look for patterns or clusters of indicators that suggest a problem. Here are examples of the exploitations these fraudsters commit:-Forging the signature of an elderly to access personal checks, credit cards and other financial accounts; Stealing prized possessions, cash, and pension checks; and Theft of identity. Most victims of this are senile elderly. Some charge excessively for unnecessary healthcare services. While there are those that offer special "prizes", which in the end forces the elderly to purchase. It is a good thing there are many vigilant bank fraud lawyers who take necessary measures to fight against these problems. Fraudsters take advantage of the elderly's confinement in a nursing facility and use his identity for personal or business transactions. Sometimes, even healthcare companies are guilty of this crime. Unfortunately, many elder abuse victims suffer in silence. Either they have no family members or friends to turn to, or they think that their cries for help will be ignored and they fear retaliation from their abusers. Some victims of elder abuse aren't even aware that they are being victimized and so financial exploitations go undetected indefinitely or until it is too late and the damage is already done.

Elder Financial Exploitation Discussed by LA Probate LawElder Abuse Prevention

Your actions depend largely on the threat he is facing, real or perceived. If your loved one is the victim of a criminal act, you should contact the local police or sheriff immediately expresses LA Probate Law. Frequently the elderly are victims of a confidence game, shady transaction or even a scheme to change an estate plan. These transactions can frequently be reversed and sometimes assets can be frozen before they are forever lost. In these circumstances, you should also consult with an elder abuse attorney immediately. Keep your communication lines open with your elderly relatives. Check up on them from time to time. Observe, observe, observe! Be perceptive about any behavioral or physical change. Keep an inventory of all jewelry, expensive gadgets, and properties. Make sure all the valuables are stored in a safe place. Do a thorough research on the background of your caregiver! Look for licensed and bonded agency. You may also hire an investigator to examine the credentials of your caregiver. This ensures that your relative is in good hands and the caregiver is not a convicted felon of some sort. It is unadvisable to choose one through an advertisement. When you know somebody who may be a victim of this kind of crime, it would be best to tell the authorities or refer a good bank fraud lawyer who can help them. If you know the family and do not wish to be called as someone who meddles in family affairs, you can search the internet and find anonymous hotlines you can call.

Power of Attorney Abuse

A power of attorney is used to delegate legal authority to another person says LA Probate Law. The principal gives the agent the authority to make legal decisions on his/her behalf, including handling bank accounts, real estate, and other assets. The potential for fraud exists in every power of attorney arrangement, through self-dealing, embezzlement, and unlawful gifting. In some situations, a power of attorney holder will significantly deplete an estate, leaving the heirs of the principal with little or no inheritance. Imposition of constructive or resulting trusts can also be imposed against a defendant. If the defendant wrongfully acquired title to the elder's real or personal property, then the court can order that the defendant's interest was solely as a trustee and such property must be returned to the elder. Other ways in which a power of attorney can be abused include changing beneficiary designations on life insurance or annuities, and opening bank accounts with joint title or pay-on-death provisions in favor of the agent. The potential for power of attorney disputes is great, and can lead to lawsuits. Elder financial abuse takes place simply because of a senior citizen's lagging mental capacity, especially those that are senile. Isolation also plays a role in the abuse. Acting quickly is critical. Action must be taken immediately to stop the perpetrator from stealing any more property or money.

Elder Financial Exploitation Discussed by LA Probate Law


Conservatorship with LA Probate Law A conservator is appointed through a court supervised hearing to manage financial or personal affairs for someone who is unable to do so on their own. There are 2 types of conservators: The Conservator of the Estate an


Conservatorship with LA Probate Law 

A conservator is appointed through a court supervised hearing to manage financial or personal affairs for someone who is unable to do so on their own. There are 2 types of conservators: The Conservator of the Estate and the Conservator of the Person. The Conservator of the Estate deals with the financial aspects. The Conservator of the Person deals with decisions on behalf of the conservatee. As your parents age, many concerns and needs will arise. One of them being whether or not a conservatorship is appropriate. A conservatorship, also referred to as adult guardianship, is the process of having someone make the necessary medical and financial decisions for your loved one. There are many different things that go into qualifying the need for a conservatorship and establishing an appropriate conservator. A conservatorship is a court proceeding where a court appoints someone to serve as the “manager” of the incapacitated person. A manager may be appointed after a screening process that includes review by a court investigator and a court appointed attorney says LA Probate Law. Depending on the scope of the court’s order, the conservator may be able to determine such things as where the elderly person lives, how his money is spent and what medical treatment to authorize.


The conservator of the person handles the medical and personal decisions, while the conservator of the estate handles the finances. It is ideal for the conservator of the person to be a relative, and the conservator of the estate should have experience of handled finances, especially if the estate in question is immense or complex. In some cases both aspects may be handled by one person. The probate court can also appoint neighbors, friends or even a private professional to serve in the role. The probate court is also empowered to appoint the county through an agency known as the public guardian. To be a conservator, an individual must be willing to accept the fiduciary role of managing the incompetent person’s affairs under the supervision of the probate court. To be a conservator, you must be over the age of 18 and capable of obtaining a bond to insure performance of your duties. The court will examine any applicant to determine whether there are any past problems or conflicts of interest that would serve to disqualify an applicant. In appointing a conservator, the probate court will first follow the written directions of the Conservatee explains LA Probate Law. In the absence of written directions, the probate court will give priority to family members.

Starting Conservatorship

Conservatorships are for people who cannot manage their financial assets for whatever reason. If your loved one is not able to manage their own financial affairs, you can be appointed as their conservator. As a conservator, you will be given trustee status, which means you can handle financial affairs for them without their pre-approval. While you will not have any power over personal care decisions, you can choose to redistribute funds, invest in stocks, and even purchase property in order to protect the financial status of the afore mentioned individual.The conservatorship is started by an interested party filing a petition with the probate court seeking the appointment of a conservator. The screening process requires notice to the incapacitated person, who must be represented by court-appointed counsel. Frequently the incapacitated person is evaluated by a medical professional to determine whether the potential conservatee’s level of mental impairment, if any. If the incapacitated person objects, he has the right to a jury trial before being placed under a conservatorship. If a conservatorship is necessary and warranted, the court will issue an order appointing an individual conservator. The appointed conservator then obtains Letters of Conservatorship which gives the conservator the legal authority to manage the conservatee’s affairs. The appointment process usually takes more than a month and sometimes longer explains LA Probate Law.


Conservatorship with LA Probate Law  A conservator is appointed through a court supervised hearing to manage financial or personal affairs for someone who is unable to do so on their own. There are 2 types of conservators: The Conservator of the Estate anProtection of Conservatee

The conservatee is not represented by legal counsel, and the law does not impose a duty on any family members to investigate possible inaccuracies contained in the conservator's accounting to the court. The court does utilize probate "examiners" who review the conservator's accounting, but the examiner's role is limited to checking on, for example, whether the required accounting information is set forth in the proper format required of the court. If no one close to Conservatee is considered neutral, the probate court may appoint a third-party such as the County (through an agency known as the Public Guardian) or a private professional conservator. You can obtain information and forms to file a conservatorship through the probate clerk. A court hearing will be scheduled to determine if a conservatorship is granted. The local senior advocacy group in your town or city should be able to help you or your loved one file the appropriate forms.


A revocable trust is also part of the available alternatives to a conservatorship. The elder's assets that are owned by the trust can be managed by a successor trustee - a person appointed by the elder to prudently manage trust assets if the elder becomes mentally or physically incapacitated. Priority will generally be given to the conservatee’s written instructions or family members. Sometimes, however, there are circumstances where appointing a designated representative or family member is going to create additional problems. In those circumstances, the probate courts frequently appoint a neutral party to serve as the conservator expresses LA Probate Law.

Conservatorship with LA Probate Law


California Small Estate Affidavit by LA Probate Law


California Small Estate Affidavit by LA Probate Law


Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. May be used to settle estates valued at less than $100,000 after at least 40 days have passed from time of death. No administrative or legal proceeds are pending or have been conducted involving the estate. Small estates, defined as those with a total value of less than $100,000, may be settled in California without going through the formal probate process. LA Probate Law understands the death of a loved one is often a stressful and confusing time. And we know the prospect of dealing with a loved one's estate can be intimidating. Our Los Angeles estate attorneys advise anyone settling an estate to consult with an experienced attorney and we will assist you in properly settling the estate of a loved one in an economical and hassle-free manner.

Small Estate Affidavit as useful Tool

While the small estate affidavit can be a very useful tool in appropriate situations, persons considering acting as affiant should be aware that the declarations in the affidavit are essentially made under oath and if the facts are not as presented then the affiant can potentially be held personally liable, even for errors or omissions made in good faith.  With this in mind, a small estate affidavit should generally not be used when, among other considerations: there are unpaid creditors or funeral expenses; the will is of questionable validity, might be contested or is ambiguous; the heirship may be disputed; there are minor or disabled beneficiaries; probate proceedings have already been initiated; or all estate assets are not known.  When the decedent leaves a Will, the original must be filed with the clerk of the court, a copy should be provided with the affidavit and the terms of the Will control the distribution of assets explains LA Probate Law.  When there is no Will, the assets pass to the decedent's heirs according to Illinois intestacy law.  Small estate affidavits are commonly used for access to a safe deposit box and for the transfer of automobile title.  In such cases, the appropriate entity may have their own form to be used.  Keep in mind that a small estate affidavit cannot be used to transfer title to, or to sell, real estate.

California Small Estate Affidavit by LA Probate LawSummary Administration

Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less ad affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. California Summary: Pursuant to California statute, if the value of an estate does not exceed $100,000, and forty days have elapsed since the death of the decedent, an interested party may demand payment on any debts owed to the decedent through a small estate affidavit. Although the Probate Code states that a declaration under penalty of perjury is sufficient, many institutions require a notarized affidavit, especially when securities are involved. Contact the institution to determine if notarization is necessary. If there are several assets to be transferred, they may all be included on one affidavit, or a separate affidavit may be used for each states LA Probate Law. If more than one person is entitled to inherit a particular asset, all beneficiaries must sign a single affidavit.

Affidavit for Collection of Personal Property

Probably the most popular use of a "Small Estate Affidavit," also called "Affidavit for Collection of Personal Property," is to access a Decedent's bank or securities account.  The practical (as opposed to legal) problem is that banks, brokerages, transfer agents, and institutions in general are used to transferring such accounts through a probate proceeding, in which the Personal Representative delivers a copy of his/her Letters to the institution and requests the transfer.  That's the method that institutions are familiar with, and they have come to see it as "the proper (and only) procedure" for making the transfer.  Consequently, far too often, when a Successor presents a Small Estate Affidavit to an institution, the institution responds "We need Letters to make the transfer." Many institutions - especially when securities, cash, stocks or other liquid assets are involved - may require a notarized affidavit. Personal property refers anything that isn't real estate says LA Probate Law. One affidavit may be used for several assets being transferred, or a separate affidavit can be used for each asset. Additionally, all beneficiaries must sign a single affidavit in cases involving more than one heir. The Affidavit for Collection of Personal Property must be accompanied by a certified copy of the death certificate; evidence of the decedent's ownership of the property; proof of the identity of the person signing the affidavit; and an inventory of all assets owned by the decedent in California. Common types of personal property include furniture, jewelry, and household goods, as well as bank accounts, stocks, and money due to the decedent. Seeking the guidance of an experienced probate attorney can often help you avoid common pitfalls, including questions about fair-valuation of property; a proper inventory and valuation of estate assets; questions or challenges involving beneficiaries or heirs; and refusal of custodian to release property.

California Small Estate Affidavit by LA Probate Law

LA Probate Law Talks about Durable Power of Attorney


LA Probate Law Talks about Durable Power of Attorney


Many people wonder why they need a power of attorney (POA) as part of their estate plan, well the answer is typically because they’re not dead yet. Most Wills and Trusts are created to spring to life upon the death of an individual. What this means is that if for any reason due to failing mental health, Alzheimer’s, dementia, coma or any other reason somebody is not able to sign their name to a legal document or conduct their finances in a sound manner their estate will remain stagnant.  With a POA, it won’t. A power of attorney allows somebody to sign your name when you are unable to sign it states LA Probate Law. Powers of attorney can be general, special, durable, limited or springing. All powers of attorney must be notarized before the document will be considered a legal.

General and Special Power of Attorney

In estate planning, a durable power of attorney is often chosen as a way to plan for those times when you are incapacitated. It is a written document that remains valid even if you should later become unable to make your own decisions. With a durable power of attorney, you are able to appoint an agent to manage your financial affairs, make health care decisions, or conduct other business for you during your incapacitation. If you choose to create a durable power of attorney, a lawyer can tailor your document to meet your needs. A general power of attorney gives the agent (aka: attorney-in fact) broad financial power to act on behalf of the principal (the creator of the power of attorney) explains LA Probate Law. Most powers of attorney are general because when the document is first created it is difficult to determine what it may be needed for in the event of one’s mental incapacity. A special power of attorney is typically used in the sale of real property or to take care of a specific business matter while one is still alive but either out of the country or just plain unavailable to execute a document or documents needed to complete a transaction. A successor trustee will typically need a special power of attorney before being allowed by the escrow company to sell the home of a deceased trustor.

LA Probate Law Talks about Durable Power of AttorneyDurable, Limited, & Springing

A durable power of attorney is exactly what is says, durable. It is meant to live on for an indefinite period of time. However, most banks, credit unions and other financial institutions won’t accept a power of attorney of any kind if the document was executed more than seven years prior to its use for liability reasons. We highly recommend that a durable power of attorney be re-affirmed every seven years so you know it will be accepted these institutions should its use be required. A limited power of attorney can be used only for a specific period of time tells LA Probate Law. Many are one drafted with the intention of using them for one month, six months, or a year. Many people give their attorney a limited power of attorney to take care of a legal matter when the client is being represented by an attorney. A springing power of attorney “springs” to life only upon ones incapacity. As a part of most estate plans the trustor will also create a Power of Attorney that is a Springing General Durable Power of Attorney in which the agent will be able to use ONLY if the Principal/Trustor becomes mentally incapacitated. Incapacity of the Principal is typically determined by two physicians not related by blood or marriage to the agent.  The physician and the named agent thereafter affix affidavits to the power of attorney. Once these affidavits are affixed to the power of attorney and it is thereafter recorded, the Springing General Durable Power of Attorney is ready for use by the agent.

Durable Power of Attorney for Health Care

The durable power of attorney for health care is a limited durable power of attorney created only for the purpose of making health care decisions. The durable power of attorney for health care can do everything that a living will can do. In addition, it gives your agent the power to actively remind your physician of your wishes. Your agent will make all of your health care decisions in the event you become incapacitated. The agent must follow your wishes and must consider your physician’s recommendations. Any decision must also be within the range of accepted medical practice. Part of creating a durable power of attorney for health care is choosing an agent. The agent is the person that you assign to make health care decision for you. You need to think carefully about who knows you best, and who will be able to speak on your behalf regarding your health care matters. You should also consider where the person lives and whether that person could be present when health care decisions need to be made say LA Probate Law. You should discuss your health care wishes with your agent. You should also consider naming a second person to act as an agent in the event that your first choice is unavailable or is unwilling to make the decision. Once you have signed a durable power of attorney for health care, you should inform you physician, your family, and your religious advisor. If you change your mind after creating the document, you can amend or revoke it at any time.

LA Probate Law Talks about Durable Power of Attorney


LA Probate Law: How does the Spousal Property Petitions process work?


LA Probate Law: How does the Spousal Property Petitions process work?


A Spousal Petition should always be the first petition your attorneys considers when dealing with a surviving spouse or domestic partner. It may not work in every case and may not be the best answer but we always consider it first as it is typically the most economical way to transfer property to the surviving spouse. If your attorney does not mention this option to you, and you are a surviving spouse, you might ask them why explains LA Probate Law. The surviving spouse files a spousal property petition with the Superior Court in the county in which the decedent resided. The petition is usually filed with the help of an attorney, although that is not required. The petition states the facts of the case (name of the decedent, date of death, etc.) and also lists the community property owned the decedent. Some of the decedent's assets will not be on the petition, however, because they were owned in a joint tenancy. What is a spousal property petition? After the death of a spouse, a spousal property petition can be used to transfer assets from the deceased spouse to the surviving spouse or domestic partner. It is a simplified probate, and takes much less time than a full probate. Legal fees are usually much lower for a spousal property petition than a full probate.

When can a spousal property petition be used?

Whenever someone has died and that person leaves a surviving spouse or domestic partner. If there is a will, and the only beneficiary is the surviving spouse or domestic partner, both community property and separate property can be transferred by a spousal property petition. If the will has other beneficiaries, however, a probate may be needed for the assets being transferred to those beneficiaries. However, if there is no will, the estate will be transferred in accordance with intestate succession. Community property can be transferred to the surviving spouse or domestic partner through the spousal property petition. But if the decedent owned separate property, and there is no will that gives the separate property to the spouse, a full probate might be required for the separate property assets. What happens if the surviving spouse does not file a spousal property petition? Title to assets owned by the couple will be clouded because a deceased person will be listed as an owner of the assets tells LA Probate Law. Real estate, for example, cannot be sold or refinanced until the title is cleared. Decades of law involving estate disputes and divorce have made the declaration and identification of community property a complex legal procedure.

LA Probate Law: How does the Spousal Property Petitions process work?Probate Court

With a spousal property petition there is no publication requirement, Letters do not issue, and no bond is required. A petition is prepared and filed with the probate Court. One of two orders are requested: That property transfer from the deceased spouse to the surviving spouse; and/or Confirmation that property is already the community property of the surviving spouse. A spousal property petition is an election. That is, the surviving spouse can file a full probate if they desire. In some cases it is desirable to file the full probate rather than to utilize the spousal property petition but attorney fees should not be a factor! The reasons for opting for the full probate include dealing with creditors, selling property as a whole unit, ascertaining the proper recipients of assets, control, and administrator’s fees. Additionally, if the decedent’s estate is being distributed to both the surviving spouse and others the community property can be bifurcated from the rest of the probate and distributed directly to the surviving spouse without going through the whole probate process. A spousal property petition cannot be used when the decedent left a pour over will to a trust explains LA Probate Law. Remember property does not have to be community property to fall within a spousal property petition. Any property, community or separate, transferring from the deceased spouse to the surviving spouse qualifies.

Does a spousal property petition have to be used in all cases in which there is community property?

No. In some cases the surviving spouse may want to probate the estate because litigation against the estate or a will contest is likely, or because of potential problems with creditors. The petition asks that the court state that the decedent's half of the community property passed to the surviving spouse by operation of law and that the court confirms that the surviving spouse's half of the community property belongs to the surviving spouse. A court hearing is set for the petition, and notice of the hearing is sent to everyone who is mentioned in the will (if there is one) and all of the heirs of the decedent. If there is no objection to the spousal property petition, the court will sign an order that transfers all of the community property to the surviving spouse's sole ownership says LA Probate Law. There is usually no testimony required and spousal property petitions are often on the court's "pre-approved" list, meaning that unless someone asks that the case be heard, there will be no hearing and the court will sign the order. The spousal property order is then recorded with the County Recorder in each county in which the real property is located to put the surviving spouse's ownership of the property on the public record. Copies of the order are also given to financial institutions and brokerages to clear up any ownership questions concerning other assets.

LA Probate Law: How does the Spousal Property Petitions process work?

LA Probate Law All about Gift Tax


LA Probate Law All about Gift Tax


In general, a gift tax is owed whenever an asset transfer occurs in which the donor does not receive a comparable return of assets in exchange. In estate planning, problems often arise when a person preparing an estate decides to begin giving assets away in an attempt to avoid estate taxes after death. Unfortunately, such sudden charity can leave an estate open to taxes it cannot pay. Conversely, the proper planning of an estate using planned giving -- either to friends, relatives or qualified charitable organizations -- can be an excellent way to minimize taxation and help ensure that the value of your estate is maximized for the financial well-being of friends and loved ones. At LA Probate Law, our comprehensive approach to estate planning can help clients prepare for the proper administration of their estate, minimize estate and gift taxes, and help secure your estate for the benefit of your intended beneficiaries.

Estate & Trust Planning

By utilizing a Living Trust or other estate-planning tools, many obstacles to planning for the final administration of your estate can be handled while you are live, thus minimizing the chances that taxation issues will devalue or eliminate your state upon death. For example, determining "Fair Market Value" is often an area in which problems can arise involving the gift tax in cases where real estate exchanges hands for less than the proper valuation of a property. In other cases, the liquidation of a gift can have unintended tax consequences for the beneficiary; taxes must be paid on proceeds based on the fair market value of a gift. Having qualified LA Probate Law assist you in preparing your estate for distribution can be critical to protecting your estate and ensuring tax complications do not devastate loved ones counting upon your assets for their future financial well-being.

LA Probate Law All about Gift Tax2012 Gift Tax

The 2010 Tax Relief Act keeps the gift tax rate at 35% for 2011 and 2012, but the gift tax will be significantly different in 2011 and 2012.  (1) Higher exemption. The gift tax exemption for 2011 and 2012 is increased from $1 million to $5 million for individuals. So, individuals who used their entire $1 million gift tax exemption prior to 2011 will be able to gift an additional $4 million in 2011 and 2012 without incurring a gift tax. (2) Unified exemption. The gift tax exemption will be reunified with the estate tax exemption, starting 2011. (3) Indexed for inflation. Starting 2012, the gift tax exemption will be indexed for inflation. (4) Portable. In 2011 and 2012, the gift tax exemption will be portable. Portability allows a surviving spouse to use the amount of estate and gift tax exemption not used by the decedent spouse. Here is a summary of what TRA 2010 provides for gifts made in 2011 and 2012 and the estates of decedents who die in 2011 or 2012, as well as some problems created with regard to state estate taxes and generation-skipping trusts: Sets new and unified estate tax, gift tax and generation-skipping transfer tax exemptions and rates says LA Probate Law. For 2011, the federal estate tax exemption will be $5 million and the estate tax rate for estates valued over this amount will be 35%. The estate tax has also become unified with federal gift and generation-skipping transfer taxes such that in 2011 the lifetime gift tax exemption and generation-skipping transfer tax exemption will be $5 million each and the tax rate for both of these taxes will also be 35%.Indexes estate tax, gift tax and generation-skipping transfer tax exemptions for inflation in 2012. The estate tax, gift tax and generation-skipping transfer tax exemptions have been indexed for inflation for the 2012 tax year such that each will be increased from $5 million to $5.12 million beginning on January 1, 2012.

Example of 2012 Gift Tax

Therefore, to give one example:  You could give a gift of $13,000 a year each to your daughter, son, mother, a friend, a cousin, your Accountant…without having to file a gift tax return.  Your spouse could do the same to the same people if you wish in the same year. Therefore, if you both gave gifts to the same people, they will receive a gift of $26,000 in that year and they can still receive gifts from more people within that year as long as it’s different people giving them the gifts.  If you go over the $13,000 a year limit per donee, then a gift tax return will be necessary to file….and our firm will be able to handle that for you. The gift tax in 2011 and 2012 will be levied at a rate of 35% and with an exemption of $5 million that is portable. People who were once limited by the $1 million gift tax exemption will be able to gift up to the new limit. The $5 million exemption can be stretched with proper estate planning. Congress did not change the rules for grantor retained annuity trusts or for valuation discounts. It had been threatening to significantly restrict these estate planning tools. So, they can be used in 2011 and 2012 (so far). At LA Probate Law, we advise anyone considering their estate plans to do so with the qualified advice of an estate planning professional. Few mistakes can be as costly as those involving the Internal Revenue Service. If you are considering making estates gifts during your lifetime, or need to prepare for the proper administration of your estate, contact us for a confidential consultation.

LA Probate Law All about Gift Tax

LA Probate Law: How to Determine if You Should Pursue a Legal Case?


LA Probate Law: How to Determine if You Should Pursue a Legal Case?


There are many reasons why people litigate. That is the question in many cases. There are several factors that go into making these decisions. Of course, these factors vary with the circumstances of the particular case states LA Probate Law. To determine whether or not you should pursue a legal case, you should ask yourself the following questions: 1. What are my damages? 2. Can I collect from the defendant if I win the case? 3. How much am I willing to risk? 4. Am I pursuing the case for a reason other than economic recovery or damage control? If the answer to this is yes, it is very unlikely that your case will settle. 5. Will the lawsuit prevent further damage or create more damage? 6. Am I willing to deal with the emotional ups and downs of litigation for a few years? Go through the above questions yourself first.


Costs in litigation start out small – attorney’s fees, fees for filing a Complaint, and service of process fees. They tend to explode as litigation continues – especially in cases set for Trial. These costs include Attorney’s Fees for filing papers, propounding and responding to Discovery Requests, copying costs, expert witness fees, and other expenses along the way. Constant evaluation should be done, as above, to determine if and how litigation should proceed. LA Probate Law would not want to continue the 50/50 case above if the case proved impossible to win. At that point, we would want to get out of the case in the most effective manner. We often hear that Americans are “suit happy”. While there may be some frivolous lawsuits out there, we believe that the vast majority of cases (especially those properly evaluated) are filed for legitimate reasons when Parties cannot settle a matter outside of the Court system. Nonetheless, sometimes litigation is necessary to right a wrong, and, whatever faults people may find with the country’s current system of justice, history shows it to be the best manner for resolving disputes that cannot be resolved in any other way.  Because the term “litigation” encompasses all forms of court actions from capital murder to small claims court, this post will focus primarily on cost/benefit analysis for a standard civil matter.  Keep in mind, though, that every case is different, and no hard and fast rules exist for how much something will cost to litigate.  Many variables go into the equation such as the experience of the attorney, the complexity of the issue and the area of the country in which the matter will be litigated (attorneys in larger cities charge more per hour than attorneys in small towns).

LA Probate Law: How to Determine if You Should Pursue a Legal Case?Talk Settlement

The reason is that trials can be quite expensive.  Avid watchers of legal dramas often have the misconception that the time between the filing of the complaint and the trial is only a few weeks or perhaps a month.  The reality is, however, that it usually takes at least a year from the time the action commences until it goes to trial.  During this time, the attorneys for the parties engage in discovery, which involves gathering and reviewing documents, taking depositions of witnesses and drafting and responding to a variety of motions.  Depending upon the complexity of the issue, the number of parties involved and the number of lawyers involved, attorneys can spend upwards of 100 hours on a case from start to finish on cases of moderate complexity. In performing the cost/benefit analysis of whether or not to go to trial, realize that it is highly unlikely that the plaintiff will get the full amount of the claim.  If the opposing party is willing to hire counsel and go to trial, it probably has good defenses to the claim that can lower the award says LA Probate Law.  Also, in a breach of contract claim, probably one of the most common actions, a court cannot give punitive damages as contract law deems such an award to be a penalty and does not allow it.  The most the party can expect to collect is the value of the contract. 

Alternative Dispute Resolution

Because of the cost of going to trial, the field of alternative dispute resolution (“ADR”) has increased in popularity.  Mediation is the most common form of ADR, and one that courts have the power to order parties to undergo.  In a typical mediation, parties go to separate rooms, and a mediator will go back and forth, get each party’s perspective and then try to find some common ground.  The mediator must keep everything said by either party in strict confidence, and mediation is not binding on any party.  Mediation can be beneficial because it provides a neutral, third-party assessment of the strengths and weaknesses of the case.  Also, a good mediator can cut through the emotions that often surround litigation.  LA Probate Law gives an example; a plaintiff may be quite upset with the defendant for a variety of reasons.  Perhaps the two were business partners and had a bad split; perhaps the defendant is a supplier who failed to make a timely delivery and cost the plaintiff a job.  The mediator can often temper the emotional components and help the parties to understand that “winning” in a court of law, although it would provide vindication, may not be financially prudent if some common ground can be located.


LA Probate Law: How to Determine if You Should Pursue a Legal Case?


LA Probate Law: Will is needed Why?


LA Probate Law: Will is needed Why?


A will allows you, instead of state law, to decide who will receive your assets after you die. If you don't have a will, your estate will be distributed as required by the California Probate Code. If there is no estate plan, usually your nearest relatives will inherit the estate. Perhaps you would have wanted it this way, but if you wanted to make a gift to other relatives, to someone outside of the family, or to a charity, it won't happen unless you had an estate plan. A Will is a legal document meant to carry out your wishes - or will - after your death say LA Probate Law. A Will commonly disposes of your assets, such as real estate, money and property, and may even designate guardianship for children. Your Will is probably your single most important legal document; taking the time to consult with a professional and to draft a valid Will is critical to ensuring your wishes are followed at your death and that your family or loved ones are not left dealing with a lengthy, expensive legal process.

Does a Will Cover Everything I Own?

No. Generally speaking, your will affects only those assets that are titled in your name at your death. Those assets that are not affected by your will include Life insurance. The cash proceeds from an insurance policy on your life are paid to whomever you have designated as beneficiary of the policy in a form filed with the insurance company—no matter who the beneficiaries under your will may be.     Retirement plans. Assets owned as a joint tenant with right of survivorship. “Transfer on death” or “pay on death.” Certain securities and brokerage accounts include a designation of one or more beneficiaries to receive the assets in that account when the account owner dies explains LA Probate Law. The names of the beneficiaries are preceded by the words “transfer on death” or “TOD.” Other assets, such as bank accounts and U.S. savings bonds, may be held in a similar form using the owner’s name and the beneficiaries’ names preceded by the words “paid on death” or “POD.” “Community property with right of survivorship.” Married couples or registered domestic partners may hold title to their community property assets in their names as “community property with right of survivorship.” Then, when the first spouse or domestic partner dies, the assets pass directly to the surviving spouse or partner without being affected by the will. Even if your entire estate consists of assets held in joint tenancy, a life insurance policy and a retirement plan, there are still good reasons for making a will.

LA Probate Law: Will is needed Why?California Wills & Probate Court

Under California law, a Will is administered through probate court. Those wishing to bypass the probate process should consider a Living Trust or other legal form of transferring your assets without probate jurisdiction. Typically, the executor named in your will starts the probate process after your death by filing a petition in court. An executor is appointment by the court, takes charge of the assets, pays debts and, with court approval, distributes the estate to beneficiaries in accordance with your Will. In many instances, hiring an estate planning attorney to assist with probate court matters can be a good idea. There are many advantages and disadvantages to probate court and an experienced attorney may best assist you in ensuring proper administration of an estate say LA Probate Law. Probate court is accustomed to resolving disputes and oversees an executor's actions, which can also help protect an estate. However, the probate court process is public, so your estate, assets and values will become public record and will be accessible by anyone who wishes to review court documents. In some cases, a probated estate may cost more in court and attorney fees, and may take longer; that estates plan that distributes your assets through a living trust.

Dying Without a Will or Trust

If a California resident dies without a will or trust, they die "intestate" and the laws of intestate succession are used to determine who will inherit the estate.  Determining the heirs of the estate involves answering a series of questions about the person who died.  The following discussion applies only to California residents and the intestate succession law of other states may be different. If you don’t leave behind any instructions for how you want your property divided (such as with a valid will or living trust), then California law steps in so that the probate court can distribute your property to your heirs.  A person who dies without a valid will is said to have died “intestate.”  In these situations, California’s intestacy laws apply.  These laws decide which family members will inherit by creating a hierarchy. Your surviving spouse or domestic partner will receive your full share of “community property” (your shared marital property as determined by California’s community property laws).  You might also have your own “separate property” (usually this is property you owned before marriage or inherited while married).  Assuming that your separate property never turned into community property, then your spouse or domestic partner will get a share of those assets Those relatives (usually children) would receive the rest. If you had children (or a grandchild from a child who died), then they’ll inherit your estate says LA Probate Law.  If you didn’t have any children, then the hierarchy goes from parents, to siblings, to grandparents, to aunts and uncles, to cousins, and then more distant family members.  Keep in mind that once there’s someone eligible to inherit, the probate court won’t give property to anyone who’s further down on the hierarchy.

LA Probate Law: Will is needed Why?

LA Probate Law Explains Revocable vs. Irrevocable Trusts


LA Probate Law Explains Revocable vs. Irrevocable Trusts


When it comes to understanding trusts, knowing the difference between revocable and irrevocable trusts is crucial. If you ask for a revocable trust and get an irrevocable one, or vice versa, the legal and tax consequences will be significant. A California Revocable Living Trust is an excellent way to protect your assets, ensure their proper distribution upon death, avoid leaving your estate subject to probate court proceedings, and even realize certain tax advantages. LA Probate Law, our comprehensive law practice, which includes a thriving estate planning department in addition to business litigation and other types of law, is well-suited to providing you and your family with comprehensive estate planning. Irrevocable trusts are the easier of the two to understand. After you place property into an irrevocable trust, you can’t retrieve the property. For all intents and purposes, that property now belongs to the trust, not to you!

Revocable Trust

A Revocable Living Trust, also called a Revocable Trust or Living Trust, is simply a type of trust that can be changed at any time. In other words, if you have second thoughts about a provision in the trust or change your mind about a trust beneficiary or fiduciary, then you can modify the terms of the trust through what's called a trust amendment. Or, if you decide that you don’t like anything about the trust at all, then you can either revoke the entire agreement or change the entire contents through an amendment and restatement. In California, any estate valued at more than $100,000 is subject to probate court, which will open your estate to public viewing through the court system and subject it to additional court and attorney fees. Most working families who own a home will have an estate that crosses this threshold states LA Probate Law. Transferring your property into a living trust will not subject it to re-evaluation under Proposition 13 and distribution of assets through a living trust will not be subject to probate court upon your death. With a revocable trust, you can not only remain in control of your assets (as the trust administrator) but, as the title suggests, you can revoke the trust at any time. Such trusts are a great way to ensure your home and other assets remain protected throughout your life and are distributed in accordance with your wishes after your death. Since Revocable Living Trusts are so flexible, why aren’t all trusts revocable? The down side to a revocable trust is that assets funded into the trust will still be considered your own personal assets for creditor and estate tax purposes. This means that a revocable trust offers no creditor protection if you're sued and all assets held in the name of the trust at the time of your death will be subject to both state and federal estate taxes.

LA Probate Law Explains Revocable vs. Irrevocable TrustsIrrevocable Trust

An irrevocable trust is simply a type of trust that can't be changed after the agreement has been signed, or a revocable trust that by its design becomes irrevocable after the Trustmaker dies. With the typical Revocable Living Trust, it will become irrevocable when the Trustmaker dies and can be designed to break into separate irrevocable trusts for the benefit of a surviving spouse, such as with the use of AB Trusts or ABC Trusts, or into multiple irrevocable lifetime trusts for the benefit of children or other beneficiaries. Irrevocable trusts can take on many forms and be used to accomplish a variety of estate planning goals. Irrevocable trusts, such as Irrevocable Life Insurance Trusts, are commonly used to remove the value of property from a person’s estate so that the property can't be taxed when the person dies. In other words, the person who transfers assets into an irrevocable trust is giving over those assets to the trustee and beneficiaries of the trust so that the person no longer owns the assets explains LA Probate Law. Thus, if the person no longer owns the assets, then they can't be taxed when the person later dies. Another common use for an irrevocable trust is to provide asset protection for the Trustmaker and the Trustmaker's family. This works in the same way that an irrevocable trust can be used to reduce estate taxes - by placing assets into an irrevocable trust, the Trustmaker is giving up complete control over, and access to, the trust assets and, therefore, the trust assets can't be reached by a creditor of the Trustmaker. Another common use of an irrevocable trust is to accomplish charitable estate planning, such as through a Charitable Remainder Trust or a Charitable Lead Trust.


Hiring an experienced trust attorney will allow you to establish the trust, outline who will administer it in the event you die or become incapacitated, detail who will receive trust assets upon your death, and plan for funding the trust by transferring property and other assets into trust ownership. Additionally, because you (or a designated trustee) remain in charge of the trust, changes and additions can be made as needed to accommodate marriages, divorces, births, deaths, changing assets or other life events. Upon death, your trustee will carry out the instructions set forth in the trust, including the distribution of assets to named beneficiaries. And, while your trust will be subject to taxation, an experienced and qualified attorney can advise you on options to reduce or even eliminate certain tax exposure. LA Probate Law understands the importance of properly protecting your assets and the future financial well-being of your family and we believe anyone dealing with estate-planning issues deserves immediate access to skilled legal representation.

LA Probate Law Explains Revocable vs. Irrevocable Trusts

LA Probate Law: Must an Estate be Probated?


LA Probate Law: Must an Estate be Probated?

Probate is a legal proceeding that takes place following one's death, during which the administrations of certain portions of the estate are subject to court supervision, explains LA Probate Law. The primary probate proceeding takes place in the county where the deceased person resided; and “ancillary” probates will occur in every other state where that person owned real property in his or own name alone or as a tenant in common. The probate period continues until the legal obligations of the estate have been met and the court orders the final distribution of the estate. The purpose of probate is to provide a legal forum for: verifying the validity of the will (or lack thereof), admitting the will to probate, and presiding over any will contests; appointing an executor or administrator for the estate – this person must be bonded, unless the will waives the bonding requirement; identifying, inventorying and appraising the deceased person's property; notifying creditors of the administration of the estate and giving them a limited time period to present any claims they may have against the estate; supervising payment of the decedent’s debts and taxes and clearing title to assets; and approving the sale of assets (if necessary) and overseeing the final distribution to the lawful beneficiaries.

Not all Assets need to Probate

Many assets do not go through probate, including assets held in joint tenancy, assets that have named beneficiaries, and assets held in living trusts. Small estates may avoid probate, and estates passing entirely to a surviving spouse may avoid probate. Assets that are held in joint tenancy titling – “Joint Tenants,” “Joint Tenants With Right of Survivorship,” “JT TEN”, or “JTWROS” – will not go through probate, so long as there is one joint tenant still living. Title passes entirely to the surviving joint tenant, although some paperwork may be necessary to document the change. Note, however, that probate most likely will not be avoided at the death of the last surviving joint tenant if the asset passes to that person’s beneficiaries through his or her will. In California, spouses (and registered domestic partners) may hold title to assets as “Community Property With Right of Survivorship”, which operates similarly to joint tenancy in avoiding probate at the first person’s death. Assets payable to a surviving named beneficiary will avoid probate says LA Probate Law. In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated.   There are exceptions made if the decedent is survived by a spouse.

LA Probate Law: Must an Estate be Probated?Avoiding Probate in California

Avoiding probate is easy if you plan ahead.  The benefits are lower costs for your estate administration and less frustration for your family.  See the Probate Page for reasons to avoid probate.  Among the methods of avoiding probate are the following: living trusts: assets owned through a living trust do not need to be probated. Joint tenancy is if an asset is owned by two or more people as joint tenants, it will usually not be probated explains LA Probate Law. These assets can be identified by the words "joint tenants," or "in joint tenancy," "JT TEN," or similar wording. When a joint tenant dies, the other joint tenant takes 100 percent ownership of the asset.  This occurs regardless of the provisions of the will or trust of the deceased joint tenant. In other words if a house is held in joint tenancy by persons A and B, and A dies, it doesn't matter what A's will said about the house because the joint tenancy has a higher priority and the house will be owned 100 percent by B. If this is what A and B intended, then joint tenancy might be beneficial to them.  Otherwise, they should use some other form of ownership, such as tenancy in common.

Advantages to Probate

A formal probate will help to ensure that the estate is properly settled and everything that ought to be done gets done. Informal estate settlement often leaves important matters unfinished, and problems can arise years later. Automatic creditor claims cutoff. A probate requires notice be sent to all known creditors. If those creditors don't file a formal claim against the estate, their claims will be forever barred after the passage of the creditor claims period. This can be particularly important for estates where contingent liabilities may exist (e.g., pending litigation or potential future malpractice claims). Once the creditor claims period has passed, the law protects the estate from future liability for those past claims say LA Probate Law. This doesn't mean that probate will free the family of moral obligations to pay the decedent’s debts, but the executor must exercise caution in paying bills that are not legally enforceable. The heirs could challenge the executor’s right to use their inheritance to pay creditors if claims are not filed properly and in a timely manner. The actions of the executor or administrator are subject to court supervision, and that person must account to the court for his/her actions. Non-probate estates do not have this safeguard, although court supervision can be requested if desired. In some cases, court supervision is the best way to protect the interests of all parties concerned, especially if there are disgruntled heirs who seek to challenge the will. A probate proceeding will result in a court order stating who is to receive what from the estate and authorizing the executor/administrator to transfer the assets to the proper persons.

LA Probate Law: Must an Estate be Probated?

LA Probate Law: Estate Tax


LA Probate Law: Estate Tax


Proper estate planning can be critical to minimizing your exposure to estate taxes and to ensuring that plans for dividing your estate among beneficiaries properly takes into account the impact of taxes, probate court costs and other estate settlement expenses. We have the legal and financial experience and resources to help minimize your exposure to estate taxes and other expenses, while ensuring that your estate is administered in accordance with your wishes, and for the maximum benefit of your intended beneficiaries. LA Probate Law comprehensive approach to the practice of law - which includes thriving practices in estate planning, business litigation, and even personal injury, immigration and criminal law - ensures that you will have access to the legal experience and resources for virtually any situation that may arise during the administration of your estate.

What does the Estate Tax limit mean?

The figures just mentioned represent the threshold amount before tax is owed. For example, if a person passes away with an estate worth $300,000 in 2012, then no Estate Tax is due. However, if the person is worth $100M when they pass away in 2012, then it is likely that the estate will have to pay the Estate Tax. It is not a certainty however that a very affluent individual will be liable for the Estate Tax as there are deductions a person may make to avoid the Estate Tax explains LA Probate Law. For example, it is quite common for the rich (or 1% for you Occupy Wall Street sympathizers) to leave a sizable portion of their estate to charity which thereby avoids the Estate Tax if the donation is large enough. IRC §2055(a). The laws in effect when a person passes away are the applicable law. For example, if a person passes away in 2011, the limit is $5M, if a person passes away in 2012, and then the limit is $5,120,000. The current Estate Tax system is set to expire in 2013 and the exemption amount will revert back to $1M then. Consequently, the next election in November 2012 will greatly impact the specifics of the Estate Tax. Democrats are inclined to lower the Estate Tax limit and Republicans are inclined to increase or possibly abolish it. Thus, the victor in 2012's elections will have the opportunity to craft future Estate Tax legislation.   

LA Probate Law: Estate TaxPast Tax

As of 2010, the estate tax is inactive, after several years in which estates valued at up to $3.5 million have been exempt. However, the tax is scheduled to resume in 2011 on estates valued at more than $1 million. With the fiscal condition of the United States, and increasing concern over growing budget deficits, it is a virtual certainty that estates will face heavy taxation going forward. The choices are few: Die in 2010 or get serious about estate planning. Historically, estates have been heavily taxed, often requiring roughly half their value to settle the estate. For estates valued at between $10,000 and $20,000 the rate has been $1,800 plus 20 percent (or an effective tax rate of 30-40 percent); Prior to 2007, amounts over $2 million have been subject to a rate of up to 55 percent. LA Probate Law, our experienced staff will work across departments and across all areas of the law to develop and execute a comprehensive estate plan, using all of the legal and financial tools at out disposal, including a Living Trust (which can collect and control your assets during your lifetime), a comprehensive Will, gift planning, charitable giving, business structures, and life insurance and retirement account planning. On December 17, 2010, President Obama signed the Taxpayer Relief Act of 2010 (TRA 2010) into law, which overrode the provisions of EGTRRA with regard to estate taxes. As a result of this new law, the pickup tax was not reinstated, and so California will not collect a state estate tax for the 2011 and 2012 tax years. Nonetheless, the provisions of TRA 2010 are set to sunset on December 31, 2012, in which case the pickup tax, as well as the California estate tax, will return on January 1, 2013. Stay tuned for updates as they become available.

Taxable Estate

The "pick up tax" is a state estate tax that is collected based on the state estate tax credit that the IRS allowed on the federal estate tax return, IRS Form 706, prior to January 1, 2005. The federal estate tax is a tax on any transfer of assets from a deceased person's estate to his or her heirs, except for transfers to spouses. The starting point for determining estate tax is the "gross estate." However, your "taxable estate" may often exceed this figure and includes assets such as life insurance policies and the value of certain property or assets transferred prior to death say LA Probate Law. Unfortunately, many people fail to plan and execute a proper estate plan and think by giving a bunch of assets away they will lower the value of their estate. Often, this only creates headaches and tax exposure for all involved. At other times, the value of life insurance or other assets is not taken into account. The result can be an estate valued at far less than its taxable value, requiring a virtual liquidation of all assets just to satisfy the tax burden. Often, this can result in the loss or sale of a family business, farm or other enterprise, because care and planning was insufficient to prepare the estate to meet its tax burden.

LA Probate Law: Estate Tax

LA Probate Law: Life Insurance Trusts


LA Probate Law: Life Insurance Trusts


A Life Insurance Trust is simply a document that acts like a very private and secure box into which you place your life insurance policy. Did you know that upon your death the life insurance proceeds will be included in your Estate? The purpose of a life insurance trust is to avoid federal estate taxes on life insurance proceeds owned or controlled by the decedent. Anyone who buys their own life insurance, or has it provided by their employer, will usually have the face value of the insurance included in their estate for federal estate tax purposes states LA Probate Law. Certain restrictions apply, and an experienced estate planning attorney can assist you in determining if establishing an Irrevocable Life Insurance Trust is right for you and your family. In general, you cannot maintain any rights to the trust to qualify for the tax benefits, so a trust must be irrevocable, and changes to beneficiaries or loans against the policy cannot be made once the trust is established.

How does a Life Insurance Trust Work?

The trustor sets up the trust and names a trustee, who will buy the insurance for the trust, using funds contributed to the trust by the trustor. After the trustor's death, the proceeds of the insurance are paid to the life insurance trust, and then distributed to the beneficiaries of the trust, who often are the trustor's children. If the trust has been administered properly, the proceeds of the insurance will be distributed free of federal estate taxes to the beneficiaries. Tragically, life insurance proceeds often boomerang through an unplanned estate, causing unintended tax consequences. For instance, a person may have a $1 million estate that includes a family home or small business. A $250,000 life insurance police may have come close to settling the tax liability under historic estate tax rates. But, left unprotected, the insurance proceeds are also subject to taxation, resulting in a base tax of $345,000 under the historic estate-tax rate explains LA Probate Law. The result can require the liquidation of a business to settle the tax obligation of a life insurance policy that was bought to protect the estate from taxation in the first place. A establishing a Life Insurance Trust provides for independent ownership of insurance proceeds. When the proceeds are not owned by a decedent or spouse, they will not be considered part of the estate. When administered properly, the proceeds can be distributed to beneficiaries free of federal estate taxes. In fact, the payment of life insurance principals can often be made tax free under the gift tax exemption.

LA Probate Law: Life Insurance TrustsLife Insurance Trust Asset Protection

Many people do not realize that the value of their life insurance upon their death becomes a taxable event. Let's say you have property, cash and investments worth $2 million and you also have a life insurance policy that will pay your children $1 million upon your death. That $1 million will be included when the Internal Revenue Service is calculating the amount of your estate taxes; that is, if you just leave a Will and/or you don't plan for that eventuality now. If you had an "A-B" Living Trust, your exemption would be over $2 million but that would still leave you with the $1 million life insurance policy pay out, which would be taxable. There is a way to avoid all of this pain and it's called a Life Insurance Trust. Your insurance policy becomes an asset of your trust and the premium to be paid upon your death would be designated as "gifts." Since you are allowed to give gifts of up to $10,000 per year non-taxable to whomever you wish, the premiums would be divided up in lots of $10,000 gifts each year for each of your children and your spouse, or whomever you designate, thus taking it completely out of your estate say LA Probate Law. A trustee is assigned to this trust just like in a Revocable Living Trust. Upon your death the proceeds of the life insurance would then go tax free to your children and you could also provide for your spouse and other family members as well. Wealth and asset protection is not only for the wealthy. These powerful, yet simple strategies should be considered by anyone with a family, business or property.

Will Your Life Insurance Payout Be Taxed?

Many people automatically assume that the life insurance death benefit they leave over to their loved ones will not be taxed. This common misconception can result in the unnecessary payment of tens or hundreds of thousands of dollars of estate taxes. The IRS (Section 2042) states that the death benefit of your life insurance policy is included in your estate if the proceeds are payable either (1) to your estate or (2) to your beneficiaries if you possessed any incidents of ownership in the policy at the time of your death. Incidents of ownership include the right to (1) change/add beneficiaries (2) transfer ownership of the policy (3) borrow against the policy, among other rights. Instead of having you own the life insurance policy in your own name, an estate planning attorney can set up an irrevocable life insurance trust (ILIT) to own the policy with the proceeds going into the trust explain LA Probate Law. If you don't own the policy, you don't have "incidents of ownership" according to the IRS and consequently your estate is not taxed on the proceeds of the death benefit.

LA Probate Law: Life Insurance Trusts

LA Probate Law on Community Property


LA Probate Law on Community Property


Married couples and domestic partners are subject to community property laws. Community property includes all assets acquired by spouses during marriage while domiciled in California, except for inheritances and gifts made to only one spouse. The state of California considers any property acquired during a valid marriage by a husband or wife community property. Sections 760 and 771 of the California Family Code outline the state law pertaining to community property. During a divorce proceeding, a judge will equitably divide community property based on possession, the wage earnings of both parties and the length of the couple’s marriage states LA Probate Law. Unless a couple signs a prenuptial agreement, California community property law only applies if the couple divorces in the state.

Why does Community Property Affect Estate Planning?

Spouses may want to give certain assets to their children from a previous marriage, for example, or to someone who is not a member of the immediate family explains LA Probate Law. A will or trust might say, for example, "I give my community property to my spouse, and I give my separate property to my children who were born during my first marriage." Community property and separate property can also be issues when someone dies without a will. If a California resident dies without a will or trust, they die "intestate" and the laws of intestate succession are used to determine who will inherit the estate. Having a proper Will is critical to distributing your estate in accordance with your wishes. When a person dies without a Will, California law will guide the division of assets through probate court in a process known as Intestate Estate. No surviving family members will have a say in how the assets are divided; the issue will be decided under the discretion of the court in accordance with state law.

LA Probate Law on Community PropertyHow is the Community Property to be Divided?

The law does not require an "in kind" division of the community property, which would mean you, would have to divide each physical object. All that the law requires is that the net value of the assets received by each spouse must be equal. Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate, as long as each spouse gets assets that are equivalent in value. Since the total net value of the assets being received by each spouse is equal, such a division is proper states LA Probate Law. Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship. When a married person accumulates an interest in a pension, retirement, profit sharing, or other employee benefit plan during the marriage, the part that was accumulated during the marriage it is community property and subject to division in the dissolution. (If the owner of the benefits contributed to the plan before marriage or after separation, those amounts aren't included in the division.) The spouse who owns the retirement plan can pay the other spouse for the non-owner spouse's share of the community interest, or the court can reserve jurisdiction to have each spouse receive a proportionate share of the benefits when they are paid.

Estate Planning Complications due to Community Property

Although the definitions of community property and separate property may seem clear, court decisions have changed community property statutory law. The courts tend to favor community property over separate property, and there are several ways that separate property can be determined to be all or part community property. If separate property is mixed with similar community property, it may not be possible to identify which is which many years later. An example would be bringing a separate property bank account into a marriage, and then depositing the funds into a community bank account. However, tracing of assets is often used to substantiate separate property claims. Community payments to improve or maintain separate property. If a spouse brings a separate property house into a marriage, and then uses his or her monthly salary to pay the mortgage, the courts will determine that part of the house has become community property explains LA Probate Law. The percentage of the community interest will depend on the number of mortgage payments, and how much the value of the house changed during that period. Likewise, using community assets to pay property taxes, insurance, and repairs can also give the community a claim to part of the house. Generally, income from a separate property asset is separate property. However, if a spouse brings a business into a marriage and then works full time at the business, the courts can determine that the income from the business is community property. For example, a spouse owns a restaurant before marriage, gets married, and continues to work at the restaurant 12 hours a day. The income from the restaurant will most likely be considered community property.

LA Probate Law on Community Property

LA Probate Law Discusses Transferring Real Property into a Living Trust by Grant Deed


LA Probate Law Discusses Transferring Real Property into a Living Trust by Grant Deed


The popularity of living trusts, sometimes referred to as “revocable trusts,” has steadily been increasing and becoming the preferred method of transferring property at death in many situations. The main advantage of a living trust is that it avoids probate, a court process that can be very expensive and time consuming. For many people, their most valuable asset is their home. In fact, many living trusts transfer only real property. The process for transferring real property to the living trust in California is fairly straightforward, but an attorney should be consulted before any transfer is finalized. Once we have finalized your revocable living trust, it is then time to “fund” your trust. Funding your trust refers to the process of transferring your assets into the trust – that is changing the legal title to all of your assets in order to conclusively demonstrate that the assets are held in trust. To transfer your assets into your living trust, LA Probate Law will prepare deeds for real property, and/or provide you with detailed instructions for the transfer of other assets such as bank accounts.

Affidavit Death

An Affidavit Death of a Trustee must be executed, notarized and recorded when a property owner that was a Trustee or Co-Trustee in a Living Trust passes away. When a property owner as a Trustee passes away, the Successor Trustee should contact a law firm to have this document prepared to list the the successor trustee in place of the Trustee in conjunction with the Trust name and date for ease in administration. (All of those real estate documents must be signed by somebody, and this is the successor trustee). This Affidavit Death of a Joint Tenant is recorded when a joint tenant (co-owner of property with right of survivorship) passes away to allow the remaining property owner to have full rights and control over the property that was held in joint tenancy. If a spouse dies and property is held in Joint Tenancy there will be no Probate, however, when the surviving spouse dies, and eventually he or she will, there will be a Probate – it is just delayed. The property should be placed in a Revocable Living Trust to avoid Probate. An Affidavit Death of a Joint Tenant must be executed, notarized and recorded when a Joint Tenant passes away. People that are deceased are not allowed to own real property (or personal property) any longer. You can’t take it with you. Somebody must be in control of the real property’s disposition. This affidavit must be executed, notarized and recorded when a property owner passes away.

LA Probate Law Discusses Transferring Real Property into a Living Trust by Grant DeedPreliminary Change of Ownership Document

All of the above should be recorded as soon as possible after executing and notarizing. For Affidavits, these documents require a notary Jurat not an Acknowledgment. Please do not make this mistake or you will end up preparing a new document. Call a law firm such as LA Probate Law and make sure this is done correctly. Mortgage or Title Companies will not have anything to do with you (due to liability) if the property is not a current transaction they are working on. All property must be recorded in the County where the property is located. If you own property in different States, your estate will have multiple Probates to deal with. The best way to avoid this is to create a Revocable Living Trust and make your Trust the owner of all of your properties, that is, if you have more than one property. A Trust Transfer Grant Deed can also create privacy if the Trust name is not your own name but is something like 450 Enterprise Trust, or LKT Trust, etc. There is no tax consequence for couples transferring property back and forth to one another for any reason; most do this for credit, re-finance or other reasons. There is also no tax consequence for transfers between parents and children or grand-parents and grand-children. However, beware – there is a tax consequence for transfers between siblings.

Steps to Filing Out Information on Deed

Prepare a grant deed by filling out the blanks on the deed with the appropriate information. The deed must include the name of the grantor, the grantee’s name, and the legal description of the property, including the assessor’s parcel number. Name the trust as the grantee, such as “Jane Doe, Trustee of the Doe Family Trust” for example states LA Probate Law. Prepare a “Preliminary Change of Ownership Report.” A copy of the report is sent to the county tax assessor to determine whether the transfer triggers a property tax reassessment. Generally, transfers to revocable trusts do not trigger reassessment, but an attorney should be consulted to make sure. The report requires the name of the grantor, the name of the grantee, the property assessor’s parcel number and the address the property owner wants the tax bills sent to. The grantor must also sign the report. A blank report can usually be obtained at the county tax assessor’s office or at the county recorder’s office. Notify the mortgage lender if the property is subject to a due-on-sale clause in the note. A due-on-sale clause provides that the mortgage balance is due if the property is transferred. Direct the insurance carrier to name the trustee as an additional insured on the policy. Although not required, all communications with the insurance carrier should be in writing. Oral communications should be followed up with a confirmation letter.

LA Probate Law Discusses Transferring Real Property into a Living Trust by Grant Deed

LA Probate Law Discusses Annuities


LA Probate Law Discusses Annuities


An annuity is a form of an insurance product. The California Department of Insurance (CDI) does not recommend or disapprove of these products. However, being an informed consumer can help prevent you from being the victim of unscrupulous sales practices and it helps you to make educated decisions for yourself and your family.  All insurers, brokers, agents and others engaged in the transaction of insurance owe a prospective insured who is 65 years of age or older, a duty of honesty, good faith, and fair dealing. The value of the annuity contract, determined as of the date of death, is added to the owner's gross estate says LA Probate Law. This is usually the amount that will go to the owner's estate or the designated beneficiary.  If there is no remaining benefit at death, the value is zero.

Types of Annuities

An annuity is a contract in which an insurance company makes a series of payments to you at regular intervals in return for a premium. Annuities are often bought for future retirement income. The proceeds from an annuity can provide you with an income for life, or for a specified period of time.  There are two basic types of annuities. The first is when you pay a lump sum to an insurance company and they start to pay it out to you right away in periodic installments.  This type is known as an immediate annuity - the payments to you start immediately.  The second, and more common, is where money paid by you accumulates interest over a period of time explains LA Probate Law.  If you choose this type of annuity, the principal and accumulated amounts will then be paid out to you in periodic installments, usually when you retire, in order to supplement your retirement income.  This type is known as a deferred annuity - the payments to you are deferred for a number of years.  Currently, a deferred annuity may have tax advantages in that income tax is not owed until you start receiving distributions from the annuity. Both types of annuities offer you certain options for receiving your income. 

LA Probate Law Discusses AnnuitiesOptions with Annuities

Life Annuity, the insurer will pay you an income for as long as you live.  However, there are no survivor benefits.  This means all benefits cease upon your death. Period Certain Annuity, the insurer will continue to pay your survivor an income for a specified period of time. Life Annuity with Period Certain, the insurer will pay you an income for as long as you live, but if you die before the certain period that you have chosen (Period Certain), the income will be paid to a survivor (beneficiary) you designate until the end of that period.  Joint and Survivor Annuity, the insurer will pay an income to you during your life, and after your death will pay a percentage of that income (50% or 75%, for example) to a survivor you designate for his or her life. Annuities are the type of investment that sounds too good to be true: You invest a certain amount, you receive a tax-deferred payment from the annuity for a fixed number of years, and there is even a death benefit state LA Probate Law. According to the investment advisors that I work with, annuities may be a good investment for someone who is in a high income tax bracket, and who is also not a senior citizen. But, according to one independent insurance analyst who was quoted in the Wall Street Journal, "Annuities are almost never appropriate for seniors." The commission paid to the investment advisor is often in the 6 percent range, and sometimes as high as 8 percent. At a 6 percent commission, for example, sale of a $200,000 annuity will bring in $12,000 for the investment advisor.

Deferred Annuities

In recent years, there has been an increasing emphasis on deferred annuities.  If you are going to make a good choice when you buy a deferred annuity, you need to understand what kinds are available.  If one kind does not seem to fit your needs, find out about the other contracts that are described in this guide. Fixed Annuities guarantee that your money will accumulate at a minimum specified rate of interest.  However, the company may pay you a higher rate of interest if its investment experience is better than the minimum guarantee. A fixed deferred annuity always contains guarantees.  For example, it might guarantee that the interest rate on the funds accumulating in your policy will be at least 2%. Variable Annuities differ from fixed annuities in that you direct the distribution of your money among several different accounts and the accumulated funds reflect the experience of those accounts rather than that of the company expresses LA Probate Law. Typical account choices are: common stock, bond, mortgage or money-market accounts. If the value of your accounts increases or decreases, it will affect the accumulated amount.  Variable annuities are more risky to you than fixed annuities because you can lose money that you put into the annuity, but there is a possibility of greater returns. Other types of deferred annuities combine the characteristics of fixed and variable annuities.  Annuities are sometimes sold as alternatives to investment vehicles such as certificates of deposit, money market accounts, mutual funds, etc.  Each investment may affect your financial plan in a different way.  You should consult with your investment and/or tax advisor before making any decisions on purchasing this product.

LA Probate Law Discusses Annuities

Legal Care for those who Need Help Offered at LA Probate Law


Legal Care for those who Need Help Offered at LA Probate Law


In California, a conservatorship is used when an adult cannot physically care for themselves or is unable to handle their financial affairs and another person is appointed by the court to handle such matters on a person’s behalf. A guardianship is used to establish similar arrangements on behalf of minors. The Los Angeles probate lawyers at LA Probate Law take special care in handling conservatorship cases on behalf of our clients. Establishing a conservator for someone’s physical and financial well-being is a serious responsibility requiring the legal skills of a veteran law firm experienced in probate court matters. In some cases, a power of attorney may be a more appropriate than establishing a conservatorship and an experienced attorney will be able to best advise you on the most appropriate course of action for your legal situation. A California conservatorship case is started by filing paperwork in Probate Court and providing copies to the person over whom conservatorship is sought, known as the conservatee.

Working on Behalf

While this can sometimes be a painful process for all involved – especially when a conservatee is being targeted against his or her will, as in the case of an elderly family member or a loved one dealing with a mental illness – our attorneys are dedicated to working on behalf of our clients to help complete the process in a safe and timely fashion. Cases in which a pending estate is at issue can also involve contentious conservatorship hearings. By working across all branches of our comprehensive law practice -- including estate planning, business litigation, personal injury, criminal law and immigration -- our firm can help ensure you have the legal resources necessary to successfully argue your case. Once the conservatorship process is started, a court investigator will talk to the conservatee and other parties with knowledge of the situation states LA Probate Law. A hearing is then held to determine whether a conservator will be appointed and who the conservator will be. Once a conservator is appointed, certain steps must be taken to comply with the orders or the court under a conservatorship agreement. Many living trusts include a provision that allows the successor trustee to become the acting trustee if two physicians certify in writing that the original trustee is not mentally competent.  Trusts of this type should be amended to include language authorizing the successor trustee to obtain medical information about the original trustee. 

Legal Care for those who Need Help Offered at LA Probate LawAppraisal & Conservator

An inventory and appraisal of the estate of the person under conservatorship must be conducted and filed within 90 days of the date a judge signs an Order Appointing Probate Conservator. For assets other than cash, a conservator will be required to provide the inventory and appraisal to a court referee. The probate referee will make a final determination as to the value of the items, which can take several months. The estate is charged a fee for the work of the referee, which can include expenses, such as mileage, in addition to a set percentage of the estate explain LA Probate Law. Once a conservatorship has been established, the court will conduct periodic investigations to make sure the person under conservatorship is being properly cared for and to determine the need to continue conservatorship. In faces where a conservator is charged with handling a person’s finances, a bond just be posted and detailed periodic accounting of income and expenditures must be provided to the court. A conservator must provide periodic status reports regarding the conservatee’s welfare and condition and the actions a conservator has made in carrying out his or her duties. A conservator is generally eligible to be reimbursed for reasonable expenses, which will require court approval.

Advance Health Care Directive

The Advance Health Care Directive can be used to appoint a family member or friend to make health care decisions for you if you are physically or mentally unable to make those decisions yourself.  Similar documents are also called Durable Powers of Attorney for Health Care.  This document is more comprehensive than a living will or a directive to physicians.  The directive appoints an agent (and backup agents) who will carry out your wishes for health care. The directive also describes how much, or how little, medical care you want. For example, the directive might include details about use of pain-relieving drugs, when treatment should be halted, and whether nutrition and hydration should be provided to the patient.  The agent's authority to take action is triggered only by a determination that the patient lacks mental capacity. Lack of capacity is determined by the patient’s primary physician and by the agent expresses LA Probate Law. Usually the directive provides only general guidelines to an agent regarding the type of medical care that will be provided. However, the directive can also be very specific about "pulling the plug" and stopping life support, the type of medications and drugs that will be provided, and many other decisions. The directive can also specify whether food and water should be given to the patient, and whether pain relief should be provided. Are Durable Powers of Attorney for Health Care still valid? Yes, and they do not need to be amended unless you would like to list new agents, or you want to change other details regarding the type of health care that will be provided.

Legal Care for those who Need Help Offered at LA Probate Law


LA Probate Law: What are Probate Courts?


LA Probate Law: What are Probate Courts?


Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate explains LA Probate Law. Probate courts are specialized courts that possess jurisdiction of probating wills, administration of estates and guardianship and adoption of minors and incompetents. Sometimes the probate court also supervises and manages the distribution of the estate of the dead. In other words, a probate court presides over estate distribution settlements, documentation of wills, and the appointment of legal guardians. In contested matters, a probate court examines the authenticity of a will and decides who is to receive the deceased person's property. In a case of intestacy, the court determines who is to receive the deceased's property under the law of its jurisdiction. Probate assets are assets that have to go through probate. Assets include bank accounts, stocks, bonds, property and sometimes other possessions with titles, like vehicles.

Probate Duty

Probate records are records which dispose of a deceased individual's property. When a testament is made, a probate record includes an individual's last will and testament. Information contained in probate record is different in different records. Usually a probate record include: the name of the deceased, the deceased's age at the time of death or birth date, property, members of the family, and the last place of residence state LA Probate Law. Probate records are indexed by the person's name in the county where s/he died. Probate duty is a government tax on property passing by will. It is a tax levied on a will admitted to probate. The tax is imposed on the gross value of the personal property of the deceased testator. The probate duty is payable out of decedent’s estate. All matters and proceedings pertaining to the administration of an estate of the deceased and guardianship come under probate jurisdiction. Probate jurisdiction is the exercise of power of probate, surrogate, or orphan’s court.

LA Probate Law: What are Probate Courts?Probate Guardianships of Person

Probate Guardianship refers to a court appointed adult who is not the child’s parent to take care of the child or the child’s property. There are two types of probate guardianship: Probate guardianship of the person and Probate guardianship of the estate. Usually probate guardianship of a person is set up by the court to give the adult living with the child the legal authority to make decisions on behalf of the child. The guardian has the care, custody, and control of the child and will be responsible for providing for food, clothing, shelter, education, and all the medical and dental needs of the child. The guardian should also provide for the safety, protection, and physical and emotional growth of the child. The guardian will have full legal and physical custody of the child and are responsible for all decisions relating to the child. While there is guardianship the child's parents cannot make decisions for the child. The parents' rights are suspended as long as a guardian is appointed for a minor. A guardian, like a parent, is liable for the harm and damages caused by the willful misconduct of a child. The court can place other conditions on the guardianship or additional duties as guardian tell LA Probate Law. The guardian should follow all court orders. A guardianship of the person automatically ends when the child reaches the age of 18, is adopted, marries, is emancipated by court order, enters into active military duty, or dies. If none of these events has occurred, the child, a parent, or the guardian may petition the court for termination of guardianship. But it must be shown that the guardianship is no longer necessary or that termination of the guardianship is in the child's best interest.

Probate Guardianships of Estate

A guardian of the estate manages a child’s income, money, or other property until the child turns 18. The guardian of the estate is required to manage the child's funds, collect and make an inventory of the assets, keep accurate financial records, and regularly file financial accounting with the court. A child may need a Guardian of the Estate if s/he inherits money or assets. In most cases, the Court appoints the surviving parent to be the Guardian of the child’s Estate. In some states, depending on the amount and character of the child's property, the guardian may elect or the court may require that estate assets be placed in a blocked account express LA Probate Law. A blocked account is one from which funds cannot be withdrawn without the court’s permission. A guardian may be removed for specific reasons or when it is in the child's best interest. It can be by the court’s own motion or by a petition filed by the child, a relative of the child, or any other interested person. If necessary, the court may appoint a successor guardian, or the court may return the child to a parent if that is found to be in the child's best interest. In some cases the same person can be the Guardian of the Person and of the Estate. In other cases, the Court will appoint two different people.

LA Probate Law: What are Probate Courts?

Special Needs Trusts Discussed by LA Probate Law

Special Needs Trusts Discussed by LA Probate Law

The primary purpose of a third party special needs trust is to preserve government benefits for disabled beneficiaries.  Usually the benefits involved are from government programs that have eligibility requirements.  Receipt of an inheritance will disqualify the beneficiary for future government benefits. Suppose a couple has three adult children who will divide a $600,000 estate after both parents have died.  One of the children is receiving SSI benefits due to a mental disability and has difficulties with money.  Because the child is receiving SSI benefits, the child is also eligible for Medi-Cal benefits for his continuing medical and mental problems.  This child is not given large amounts of money by his family because he is likely to waste anything he is given explains LA Probate Law.  If the couple sets up a traditional distribution plan in their wills or trust that gives everything to their children equally, their disabled child is likely to have major financial problems.  If the child outlives his parents, he will inherit approximately $200,000, which will increase his assets far above the limits set by the SSI program and by the Medi-Cal program.  The child will be disqualified from those programs and will receive no further benefits.  After spending his inheritance, perhaps within just a few months, the child will have no assets, and great difficulty in returning to the SSI and Medi-Cal programs.

The Special Needs Trust

Two of the programs that are based on financial need are Supplemental Security Income (SSI) and Medi-Cal, which is the California version of the Medicaid program explains LA Probate Law. Housing subsidies, also called the Section 8 program, In Home Support Services, food stamps, and utility payment assistance are also based on financial need. However, Social Security and Medicare are not based on financial need, but are instead based on the applicant’s age and earnings record. Instead of leaving assets directly to the disabled adult child, the parents could establish a Third Party Special Needs Trust in their living trust or wills.  This trust would not be under the control of the child, and the child would not be able to revoke it and use the assets for his own purposes.  The trust would have an independent trustee and would continue for the lifetime of the child. There are other types of special needs trusts that are funded with assets belonging to the beneficiary, known as Litigation Special Needs Trusts that are not discussed here. A Third Party Special Needs Trust can own various assets that are used by the child, but due to the ownership by the trust, the assets are not counted as being owned by the child.  The trust could also pay for services required by the beneficiary, such as telephone, education, car repairs, etc., without affecting the beneficiary’s eligibility for the government programs. The trustee, however, would not make cash payments to the child because the payments would be counted as income for the beneficiary and could result in reduction or loss of benefits. The trust could also own a home for the child, thereby reducing the child’s expenses for rent, although there may be some reduction in SSI benefits as a result.

Special Needs Trusts Discussed by LA Probate Law

Good and Bad of Special Needs Trusts

The Third-Party Special Needs Trust has no obligation to notify the state or pay back Medi-Cal payments after the beneficiary’s death because the beneficiary did not own the assets.  This type of trust prevents the beneficiary from controlling the assets, but also maintains a means of helping the beneficiary with the assets held by the trust.  (However, when a Litigation Special Needs Trust is used, the state must be notified when the beneficiary dies and Medi-Cal payments may have to be repaid to the state from the Litigation Special Needs Trust.) When the parents’ estate plan becomes irrevocable, usually through the deaths of the parents, the special needs trust also becomes irrevocable.  If the beneficiary regains mental or physical capacity after that point, making changes to the trust or revoking it can be difficult, and will require court approval states LA Probate Law.  Unless the beneficiary is severely disabled and has no hope of financial survival without the government programs, a special needs trust may not be the answer.

Who Should Be Trustee?

Choosing a trustee for a Special Needs Trust is especially important because the person you choose will have authority and control over the funds in the trust expresses LA Probate Law. That means you need to be able to trust this person completely, especially if your dependent is mentally handicapped and unable to recognize any misappropriation of funds. Many people choose a parent or sibling of the disabled person to act as trustee, but you can select anyone you want, including a law firm or a financial institution. A Trustee who is unfamiliar with the rules dealing with Special Needs Trust distributions to a recipient of Supplement Security Income (“SSI”), Medi-Cal, Section 8 Housing and other government assistance programs can devastate a special needs beneficiary’s personal and financial situation. Due to pre-existing conditions, many special needs beneficiaries are reliant on Medi-Cal coverage as the sole source of health insurance coverage. For many of these beneficiaries, Medi-Cal coverage is linked to the receipt of SSI, and a loss of SSI benefits, which may be only a few hundreds of dollars per month, can lead to loss of health insurance coverage worth ten of thousands of dollar per year.

Special Needs Trusts Discussed by LA Probate Law

Probate Start to Finish Explained by LA Probate Law

Probate Start to Finish Explained by LA Probate Law


Settling an estate in probate is a complicated process. Successful probate requires not only your legal knowledge, but also an understanding of real estate, tax and financial issues. Probate is the term meaning the administration of a deceased person's affairs. Probate laws are designed to ensure that the deceased's creditors get paid, that property and assets are properly distributed to heirs and that any disputes arising out of the estate are resolved. The following tips provide an overview of the procedures involved when dealing with probate provided by LA Probate Law.


Probate is the part of the court system that rules over the estate of a person who is deceased. In addition to the assets of the estate, the probate court has jurisdiction over the protection of minor children of the decedent and any trusts of which the decedent was the sole trustee. The word "probate" comes from the Latin root meaning "to prove," underscoring one of the court's main responsibilities--to identify the validity of a decedent's will. Starting the probate process is a matter of invoking the court's jurisdiction. Establish legal death. A LA Probate Law court has jurisdiction only in the affairs of a person who is legally deceased. In most cases, this is established by filing a authenticated or certified certificate of death from a government agency. In the absence of a death certificate, probate can be initiated with an authenticated report from a government agency in which the estate owner is declared dead. Also, a person missing for five continuous years and not found after diligent searching can also be declared legally dead for purposes of probate. Establish residency. In addition to subject matter, the court's jurisdiction is also limited by geography. Probate is usually proper in the state and county in which the decedent resided. An affidavit of domicile from a successor might be necessary to establish the court's jurisdiction. If the decedent's residence is unknown or cannot be attested to, jurisdiction will likely fall to local court in the county in which the decedent perished or was declared deceased. File the will. Not everyone who dies with debts or property has a will, which is why every state has rules that govern the probate of an estate in which there is no will. The real work of the probate process is to identify the validity of any wills, as this will determine the applicable rules of succession.

Probate Start to Finish Explained by LA Probate LawMiddle

Collect and inventory the deceased's assets and belongings. The inventory list must be filed with the probate court. Handle any claims made against the estate. Dealing with probate requires paying the deceased's debts out of the assets of the estate and, if any claims are disputed, participating in hearings before a probate judge to determine the validity of the debt and the amount to be paid. Prepare and file a final report. This report should list all assets, claims and any expenses paid. It should also propose a way of distributing any remaining assets to the heirs of the estate explains LA Probate Law. Distribute the remaining assets accordingly. Obtain receipts from the heirs following distribution and file with the probate court. As a beneficiary, it is not uncommon to encounter inaccuracies to the will in question, unscrupulous activities or even poor performance by an executor or administrator. Furthermore, the process of probate is usually anything but seamless, whether you encounter disagreements with other beneficiaries or if you feel that you are somehow being cheated or victimized by other beneficiaries, then it is simply vital to retain legal representation during this highly volatile time in your life. Probate litigation is often a necessary tool in order to ensure that your rights are fully protected during the probate process.


Probate opens soon after death and ends when outstanding debts are clear and the distribution of estate assets is complete. If the estate is small, a will is present and there are no family disagreements, then most states allow a personal representative of the family to handle probate matters without court supervision. In this case, closing probate is a simple matter of informing a county probate registrar that probate is complete by filing the proper paperwork. If probate occurs under court supervision, however, an attorney or family representative must ask for and receive court approval before probate can officially close. Contact your probate attorney or a representative from the probate court to get the appropriate closing statement forms says LA Probate Law. As an alternative, download and print closing statement forms from your district judicial branch website if your state provides this option. Read the closing statement form and instructions for completing the form carefully. Gather information you will need to complete the form, such as a listing of outstanding liabilities, if any, that remain against the estate. Fill out the closing statement form in full. Sign and date the closing statement form in the presence of a notary public and at the same time have the statement notarized. Include identification information for your probate attorney if you have one. Make enough copies of the form to send to all the heirs of the estate, as well as outstanding creditors, if any, and keep a copy for yourself. Mail or deliver the closing statement form in person to the probate court. Contact your probate attorney or a representative from the probate court to get the appropriate petition to close form.

Probate Start to Finish Explained by LA Probate Law

Probate in California Explained by LA Probate Law

Probate in California Explained by LA Probate Law


If you are currently in a situation where you’ll be dealing with the California state court system in relation to a probate or estate related matter, or if you think that you will be in this kind of situation in the near future, it is important that you hire a LA Probate Law attorney that knows the ins and outs of California probate law. Probate law has to do with the handling of an estate when someone, such as a family member or other loved one, passes away. These are the laws that make sure that the creditors are paid properly and that assets are distributed to the “heirs,” or the descendant. When you find yourself in a situation where you’ll be dealing with probate law, it’s a good idea to already have in mind what you are going to need to do.

What exactly is Probate?

Probate is the process by which the Probate Court handles a deceased person’s estate if there is no trust; it applies if there is a will only, or if there is no will. (One of the primary reasons for having a trust is to distribute the estate without having to go through probate.) Essentially a probate petition is filed with the Court, creditors are notified, the personal representative lists all of the estates assets and liabilities, a probate referee appraises the assets, any disputes relating to the estate are settled, a final accounting is made, the creditors are paid and then the remainder is paid to the beneficiaries. Finally, a petition for discharge is filed, and the estate is closed. While on one hand, this may sound simple, probate law and the handling of estates is in fact a complex system, which presents you with multiple requirements and tasks to be performed by the personal representative, an experienced attorney and a tax consultant. LA Probate Law states gives an example, an estate including only a single house and single bank account that has been left to a single beneficiary will probably be a far easier and quicker process to deal with than an estate containing multiple houses that are located in various states, and that are left to multiple beneficiaries.

Probate in California Explained by LA Probate LawCalifornia Probate Codes

In order to get through the California probate process without any hang-ups or snags, you will need to understand how the procedure works. This will allow you to plan ahead, with respect to different tasks that the personal representative handles. If you don’t know much about the probate process, you will want to look for a LA Probate Law attorney who does and who can help you with your particular case. You’ll also need to know what a “petition” is, and how it is filed with the court clerk. If you are a “petitioner” and are absent from the country or unable to verify a petition, you should know that your attorney can do it for you. What you can see from this bit of information is that attorneys can help you manage responsibility that the state places on you, so that everything is handled in a legal fashion, and you end up getting all that you deserve and are entitled to.  “Reports” and “accounts” in California can be verified by anyone who has that duty, and if there is more than one of them, only one is necessary. In California, someone can make a “response or objection” at or before the probate hearing. This is important, because it often means that the personal representative will have to deal with out-of-the-ordinary procedures, which would be difficult and complex without the help of an attorney. The court will either hear this kind of response or object it then and there. They may also call for a “continuance”, in order to set aside time for this in the future, if it looks like it may be an issue that will require more time to resolve than the court has available. Requests for continuances are not acknowledged in California as objections or responses themselves; nor are those requests that are made outside of the time limit set by the state. This is important for a number of reasons.  In California, the “guardian” or “conservator” has 90 days to present the court clerk with an inventory that includes a “true statement” of the estate of the “conservatee”.

How Much Does Probate Cost?

California Probate Code section 10810 sets the maximum statutory fees that attorneys can charge for a probate. Higher fees can be ordered by a court for more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000. The fees listed below are the California statutory fees used to compensate attorneys and executors in probate cases for various sizes of estates. If both the attorney and the executor receive a fee, the amount paid will be double that shown below.  The value of the estate is determined, in general, by the inventory for the estate. Debts are not included in determining LA Probate Law attorney's fees, and if a house is appraised at $1,000,000, for example, and it has a mortgage of $800,000, it is still considered a $1,000,000 asset for the purpose of calculating attorney's fees.

Probate in California Explained by LA Probate Law

Myths and Truths of Estate Planning by LA Probate Law

Myths and Truths of Estate Planning by LA Probate Law


The objective of this discussion is to review some of the myths and realities of estate planning. A number of articles have been written on the subject but let's see if we can't put a different spin on it by keeping it simple. By dispelling some of the common misconceptions, we will have a better understanding of how important it is to take positive action to keep our estate plans in order. The Economic Growth and Tax Reconciliation Relief Act of 2001 (EGTRRA) threw many individuals for a loop when it came to estate planning. Tax laws are never simple but EGTRRA added a level of confusion rarely seen in advanced planning. LA Probate Law says for instance, between now and 2011 the federal estate tax is scheduled to decrease, disappear and then spring back to life. According to a Wall Street Journal article dated May 11, 2005, the "...current estate tax law puts estate-tax planners in an impossible situation...". With such uncertainty, some potentially damaging estate planning myths have surfaced. These financial "urban legends" stand in the way of prudent estate planning.

Myth - Life Insurance Trusts

The irrevocable life insurance trust (ILIT) is probably the most significant insurance related estate planning tool available to you. The irrevocable nature of the trust can provide estate tax savings while the insurance provides a cost effective way to pay estate taxes (depending on age and health). The appeal of an irrevocable life insurance trust is that the death proceeds of the policy are not included in the insured's estate. If kept out of the decedent's estate, the death proceeds will not increase the estate tax burden explain LA Probate Law. The irrevocable life insurance trust is a double winner because, not only are the death proceeds outside the insured's estate, but the proceeds can be available to meet estate liquidity needs. To insure that the life insurance proceeds will be excluded from the insured's estate, two of the primary requirements that must be met are that the insured must not have any incidents of ownership in the policy and the trust must be irrevocable. Some people believe that, in the face of tax law uncertainty, clients should avoid using ILITs. These same people fear that once a policy is placed in an ILIT, the policy is locked in the trust forever, even in the unlikely event that the estate tax is repealed. Nothing could be further from the truth. In reality, ILITs can be drafted with flexibility.

Myth - Estate Planning is Dead

There is no greater myth than the misperception that estate planning is dead. Even if the federal estate tax was repealed, there are many reasons for us to continue with our estate plans. Some of those are: Asset protection, Family business planning, Multi-generational planning, Privacy, Income replacement, Equalization of inheritance, Special needs dependents, & Charitable giving. Life insurance is often a crucial component of many, if not all, of these estate planning goals. Everyone has an estate plan; it's just a matter of how well your plan fits your goals. You owe it to yourself and your family to make sure your estate plan is in order. Conversation is fine, but taking action is crucial. Make the commitment to take at least one step in your estate planning efforts in the next three days. It could be as simple as organizing your paperwork, compiling a list of your assets and/or updating your beneficiary designations. If you do not have an updated will, you should make that a priority. You should also take steps to have sufficient death benefit protection structured in the most tax-efficient manner to achieve your goals.

Myths and Truths of Estate Planning by LA Probate LawMyth - Taxes

A revocable living trust is a separate legal entity that you create to own property, such as your home, other property, or investments. You transfer some or all of your property to the trust. During your lifetime, you control the trust; you can change the trust terms or terminate the trust at any time and take the property back. At your death, the trust becomes irrevocable and may continue to exist for many years. People create living trusts because they're able to retain control over their assets while achieving other goals, such as controlling the manner and timing of asset distributions to heirs, providing for asset management during periods of incapacity, avoiding probate and/or serving as a will substitute. A common myth is that revocable trusts save taxes. In reality, for tax purposes, transfers to revocable living trusts are incomplete transfers for tax purposes and do not save any taxes. Revocable trusts may offer many other benefits to a trust creator, but tax savings is not one of those. According to the myth, the increasing estate tax exemption amount means that fewer people will be inclined to give to charity. The reality is that during the same time period, charitable giving nationwide rose by nearly $90 billion! If the myth was correct, how could this be? The steady rise in charitable giving is based upon the fact that charitable giving is a grass roots effort. The vast majority of charitable gifts are made by individuals. Private foundations and corporate gifts account for relatively small slices of the charitable giving pie. 77% of all charitable gifts are made by individuals and there is no indication to believe this trend will reverse itself. America is truly a philanthropic country; estate tax reduction is rarely the primary motivating factor for making a charitable gift.

Myths and Truths of Estate Planning by LA Probate Law

LA Probate Law Readying Your Estate for Your Heirs

LA Probate Law Readying Your Estate for Your Heirs


If you expect to leave an estate, you should do whatever you can to ensure that it is not subject to the probate law in your state. Why? Even though you will not be around to experience what happens while your estate is wends its way through the probate process as defined by your jurisdiction's probate law, your heirs will. And your executor will have his or her hands full meeting all the requirements established by that LA Probate Law. Those duties include gathering and appraising your property, paying off your creditors and filing your estate taxes return; proving that your will is valid, and following your will's instructions in distributing your estate to your named heirs.

Probate Laws

Probate laws are designed to make sure that your wishes are honored, at the cost of a time-consuming, expensive process. The US courts are already backlogged, so your estate will simply be put in line behind those of everyone who died ahead of you. Your survivors will be faced with an indefinite delay before they receive the assets you intend them to have. LA Probate Law requires that the attorney handling your estate be paid a statutory fee based on its total value, usually between 2% and 4%, unless his or her hourly fee exceeds that. Your lawyer will almost certainly take the larger amount. And your estate will also be reduced by probate court fees. The personal representative must inventory the different types of property that make up your estate so that your estate value can be determined. This inventory is important for a couple of reasons. If your estate doesn't meet the monetary obligations of both your estate creditors and your property transfers to your beneficiaries, it's subject to abatement statutes, meaning that one or more beneficiaries may receive less than you had wanted or even nothing at all. Your personal representative is in charge of collecting and inventorying your estate's assets to make sure that all property is available for distributing at the end of the probate process.

Public Process

Another unpleasant reality of probate law is that the LA Probate Law process is public from start to finish. Every decision a judge makes regarding your estate is a matter of public record. Your will, which is also a public document, can be an indication of some very sensitive family conflicts which you would rather never see the light of day. But if you do not take the necessary steps to avoid probate, probate law will require their publication. When you decide to have your will drafted, don't expect your attorney to volunteer the disadvantages of having your estate probated. Probate law does not require them to do much for their percentage of your estate; the real work will fall to your executor. Your attorney, more than likely, will turn the job of drafting your will, and any jobs associated with the actual probate procedure, over to a legal assistant.  It's not at all exceptional for the attorney's fees on a half-million dollar estate to reach $20,000 during the probate process, while your survivors are waiting and you are no longer in a position to fix things. Some state laws require your personal representative to publish a death notice in your local paper. The death notice serves as a public notice of your estate's probate and enables people who think they have an interest in your estate (such as creditors) to file a claim against your estate within a specified time period. The notice is part of the process to make the matters of your estate part of the public record. Some people view the general public's ability to review your private estate matters as one of probate's disadvantages.

LA Probate Law Readying Your Estate for Your HeirsProblem Arises

For better or worse, a family’s history sticks with the members of the family, informing their every decision or reaction. This is oftentimes strikingly apparent when it comes to creating one’s estate plans. Remember: The estate planning decisions you make today may affect your loved ones, perhaps for generations. This issue was the focus of a recent article from Private Wealth titled Siblings Scorned. Sometimes, even mathematically, equal shares aren’t even in the eyes of certain family members. What are the possible tensions in the family? The reasons are as varied as the makeup of each family itself. For example, did one child get a college degree, while another was denied the opportunity because the family fell on hard times? Did one child seem more favored by the parents, either earlier or later in life? Interestingly, the most important considerations when planning your estate are rarely money-focused. Then there is the problem of which arises if you own property in different state, or even worse, countries. Your estate may be subjected to the probate law in each of them, with attorney's fees being charged for each proceeding. LA Probate Law, in addition, will require that your personal property be inventoried and appraised, and the fees for that will also come from your estate. If your estate runs out of cash, some of its assets will have to be liquidated to pay for the various fees, because until all the estate debts are cleared, none of your heirs can receive their inheritances. Families are complex. While people are complex in general, families are all the more. Why? Families are built on shared histories, both good and bad.

LA Probate Law Readying Your Estate for Your Heirs

LA Probate Law on Retainer Fees

LA Probate Law on Retainer Fees

A retainer fee is a guarantee that the lawyer will be available to work solely on your case as the need arises. Lawyers can be expensive, and, in some instances, you may be able to get a lawyer on a retainer fee. In other words, the lawyer will be on call for you and will be required to turn down other cases as the situation warrants. When you find a lawyer you may need that professional to be on call to work your case or issue exclusively. You should look for a lawyer who has previous experience or is specialized on the type of issue that you need help with says LA Probate Law. That is the easy part because you can get that information from different websites and your state’s bar. So finding the lawyer is always step one, but depending on your issue you may need them to be ready or on call. When that is the case you should try to get the lawyer on a retainer fee. The retainer fee means that the lawyer will always be available for you. That means that other cases will be turned down to give your case priority.

Find a Top Lawyer

First and foremost you should make sure that the lawyer has a proven track record on the type of case or legal issue that you need. Find a lawyer who has experience in the type of law that you need. Check out their track record with cases that are similar to yours. If there is no track record then you should not pay them a retainer fee. New lawyers may understand some of the latest changes and different tactics where an older lawyer may offer years of experience. There is a chance that they will be a brilliant lawyer in either case. LA Probate Law says part of the research should also include a confirmation that the lawyer is a member of the state’s bar association. If they are not, stay away or better yet report them. Determine if that lawyer is a current member of your state's bar association. This is achieved by contacting your state's bar. If he or she is not a member, then report them for the unauthorized practice of law. Many different types of law are practiced, such as elder law, criminal defense, immigration defense, personal injury and contract law. The individual that you plan on retaining should have a proven track record. Most often, however, criminal cases and civil cases are the two areas in which lawyers will work on retainer. That information will be the most important thing that you can find out.

LA Probate Law on Retainer FeesIt’s Settled

Once you retain a lawyer, no one else can represent you unless you fire your current counsel and hire another attorney. Once the decision has been made to hire the lawyer on a retainer fee you will be asked to fill out some paper work and forms in order to complete the process. When you have completed the forms you will then be required to pay the retainer fee. You may also be expected to pay the costs for depositions, expert witnesses, long distance telephone charges made by your lawyer on your case, copying charges, courier and postal services, etc. Hiring a lawyer on a retainer fee is more costly than him or her working for you on a standard, hourly or contingency rate. Bear this in mind before retaining an attorney. Most lawyers will allow you to pay the retainer fee in several forms of payment. The usual forms of payment for lawyers are cash, credit cards or checks. You may think that the retainer fee is unnecessary, but it is a huge advantage to you as a client to hire a lawyer on a retainer. That means that all their attention will be placed on your case or legal issue explains LA Probate Law. The expenses that are used to calculate a retainer fee are usually based on the circumstances at that time. The lawyer should be able to give you an idea of what to expect. For example, if your case is filed with the court, you must pay court costs to file the case.

Contact the Lawyer

When you have made up your mind about the lawyer that you want to represent you, make an appointment for more information. During this appointment you will find a lot more information on what their schedule looks like as well as fees for services. Contact the lawyer you want to retain and inquire about their fee schedules. Ask him or her what the firm's explicit retainer policy is. In some instances, certain types of legal services are covered under the retainer fee, or the retainer fee acts as a down payment towards your case. If this is the situation, your legal fees will be subtracted from the retainer and you will be required to make another payment at that point. Check for the firm’s policies regarding retainer fees, because not all types of law will require a retainer fee states LA Probate Law. The reason that is important is because you need to know the way a retainer fee is paid. Sometimes you will be paying the retainer fee up front as a sort of down payment. Other times the retainer fee will cover some of the services that you need. That means that it may also work as a payment for the lawyer’s time.

LA Probate Law on Retainer Fees


LA Probate Law on Non Traditional Estate Planning

LA Probate Law on Non Traditional Estate Planning


Estate planning is of critical importance in providing for loved ones in a non-traditional family. State and federal laws protect married couples in the event of death—the spouse of a person who dies without a will has rights to his or her estate and assets transferred because of death may be transferred to a spouse free of estate tax under the marital deduction. Unmarried couples and non-traditional families do not have these legal rights explains LA Probate Law. There no laws protecting unmarried partners and the laws tend to favor biological next of kin. Statistics show that non-traditional families make up a significant sector of our population and they face unique estate planning issues in order to ensure that the partners involved are cared for as those in traditional relationships. The issues that non-traditional families face can often be handled with the most traditional estate planning tools. A Non-Traditional family for purposes of this article is defined simply as a two or more person relationship that is not recognized by both the state and federal governments as a marital relationship.


A will is the foundation of every estate plan. Wills are often criticized because the assets that pass through the will are generally subject to probate, which is court supervision of the distribution of assets. In some states, this can be expensive because the fees charged by the executor and lawyer are a percentage of the estate. In other states, percentages are not allowed. However, no matter how many legal vehicles are employed to remove assets from probate, there is always property held by the individual that cannot practically be transferred except through the probate process. Personal possessions and clothing are good examples of this sort of property. Without a carefully drafted will, a beloved partner may be left emotionally and financially adrift. A will can provide unmarried couples with the opportunity to reinforce the importance of their non-traditional relationship, both to each other and to the world. If the threat of a hostile biological family is great, the couple may be well advised to get married, since a married spouse will be entitled to inherit if a will is declared invalid and the decedent declared interstate. A simple will generally provide for the disposition of tangible and intangible property and names an executor states LA Probate Law. Without positive directions and positive dispositions of property, beneficiaries may sue because of disputes. Wishes and hopes are known as “precatory” language and should be avoided.

Personal Property & Memorandum

One of the first paragraphs of a will should provide guidance for the disposition of personal property. Removing personal property from the remaining parts of the estate (the “residue”) protects it from being used to pay debts and administration costs. For non-traditional families, members should consider naming the other members as beneficiaries. The emotional toll of the death of a partner whose status is unrecognized is exacerbated when others come in to remove personal property that has been part of the partner’s home. Understanding a couple’s relationships with members of biological families is important expresses LA Probate Law. If there are family members who will be hostile to the survivor of the couple, an attorney may want to add language to the estate planning documents that limits the involvement of those family members or consider other ways of transferring assets to the survivor instead of relying on a will. The advantage of a written memorandum is that the testator can draft it without the help of an attorney and it can be changed daily, if so desired. The disadvantage is that distribution of personal property in accordance with the dictates of the memorandum is not enforceable in court. It is simply guidance and an executor can choose to ignore the directions. If there are particular pieces of identifiable property that the testator wants to leave to certain people, these items and their intended recipients should be included in the language of the will. These gifts will then be enforceable in court.

LA Probate Law on Non Traditional Estate PlanningChildren

If the non-traditional family includes minor children, a will should provide for a guardian, as well as an alternate. However, nomination of the guardian is subject to court appointment to determine if the placement is in the best interest of the children. Naming a partner as the guardian will not extinguish the parental rights of another legal parent of the child, but it will give the partner standing to challenge placement of the children with others who may have had limited involvement in their lives or if that placement represents further disruption in the lives of the children. Anyone nominated as a guardian should be consulted before the nomination is included in a will say LA Probate Law. When one partner wants to make a provision in his or her will for the minor children of the other partner, consideration should be given to who will control the children’s assets while they are still minors. If the other parent, who is not the partner, will control the assets, the testator may want to consider putting the funds in trust to be released upon the children reaching a certain age. A trust might also be appropriate where a parent wants to ensure that the children are the ultimate beneficiaries, but has the trust assets working for the surviving partner during his or her lifetime.

LA Probate Law on Non Traditional Estate Planning

LA Probate Law on Joint Inheritance

LA Probate Law on Joint Inheritance

Joint accounts are accounts, usually with a financial institution, where more than one person has rights to the account.  Deciding what those rights are is a problem often faced in contested probate cases. Are they survivorship accounts where the survivor gets all of the account and the money does not got through a will or probate? Are they non-survivorship accounts where the money does not go to the survivor but passes through the will and through probate? The courts look at the documents creating the account and the words used to determine the type of account involved.  Often, the financial institution will use a pre-printed form that has boxes to check.  The card will be filled out correctly but no box will be checked!  Or two conflicting boxes will be checked!  Since all accounts are presumed to be non-survivorship accounts, the burden of proof is on the person claiming that the account is a survivorship account to prove that it is say LA Probate Law.  If the boxes on the signature card are not checked, too many boxes are checked or as one jury found, checked later by someone not the owner of the account, then the account is not a survivor account.  The account would pass through the owner's will or through his estate. However, the courts are more likely to find that two spouses intended to create joint accounts with right of survivorship than they are likely to find that two non-spouses intended to create such accounts. In other words, the burden of proof on non-spousal accounts is higher than it is on spousal accounts.


3 Basic Joint Accounts that can Cause Difficulties

The difficulties related to the type of joint account in question.  There are three basic joint accounts:  convenience accounts - where one or more persons own the account but other, non-owners, are allowed to make withdrawals  On the death of the owner, the account passes through his will or through his probate estate and does not pass to the non-owner;     tenants in common - where two are more persons own the account equally - when one owner dies, his share passes through his will or through his probate estate and does not pass to the other owner; and joint accounts - with or without the right of survivorship. With right of survivorship means that when one of the joint owners dies, the account belongs to the survivor and does not pass through the deceased's will or through his probate estate explains LA Probate Law. Without right of survivorship means that the account is owned by the joint owners and when one dies, his share passes through his will or through his probate estate and does not pass to the other owner.

An Example Of The Difficulty With Joint Accounts Are The Following Cases:

One case held that there was no right of survivorship even though the signature card said " Joint accounts - with survivorship" since the language did not match that required by statute to create a survivorship account; Another case held that there was no right of survivorship because no box had been checked; Signature card said "Type of customer - joint with survivorship" held not a survivorship account; and, "Joint account - payable to either or survivor" was not a survivorship account.  Effective September 1, 2011, the legislature amended the Probate Code with the express purpose of overruling Holmes v. Beatty which is cited below. The changes in the Probate Code should return the LA Probate Law to what is set out above. On June 25, 2009 in Holmes v. Beatty, No. 07-0784, the Texas Supreme Court reversed some of the holdings listed above as they relate to community property between spouses. The Court held it was easier for spouses to create joint accounts with right of survivorship if they used terms like JT TEN, or designated the account as a joint account. The Court said that the difference between a joint account and other accounts is the right of survivorship. Since the husband and wife signed documents that indicated the account was a joint account, it had a right of survivorship. The account went to the survivor rather than through the wills of the husband and wife.

LA Probate Law on Joint InheritanceThere Are Two Types Of Marriages That Are Recognized By The Law: 

Ceremonial marriage - where the spouses obtain a marriage license and are married by someone authorized by law to perform marriages; and Common law marriages - where no marriage license is obtained and a ceremonial marriage may or may not be performed. Like natural born children and adopted children, the law treats the spouse of a common law marriage the same as the spouse of a ceremonial marriage. Both are heirs of their spouse and would take under the laws of descent and distribution explains LA Probate Law. Of course, the common law spouse must prove that they meet all of the legal requirements to be considered a common law spouse before they would be entitled to inherit. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, have an inheritance dispute, a property dispute or want information about contesting a will, we can help.

LA Probate Law on Joint Inheritance


LA Probate Law Long Road to a Law Degree


LA Probate Law Long Road to a Law Degree

If you are thinking of a career in law, congratulations! It is a gratifying career but also one that is full of obligation and tests. In many cases an attorney is responsible for his or her client’s livelihood so the decision should not be taken lightly. Because of the amount of responsibility the road to a law degree is not easy. The requirements are rigorous and you should really be ready to give your training every bit of effort because a lot of your early career will mostly depend on it says LA Probate Law. This is not to discourage you from obtaining a law degree, but rather to prepare you to what is ahead in this career path which is full of challenges and full of rewards.


Undergraduate Law

As an undergraduate student you would do well in taking pre-law courses to prepare you for what is ahead. These courses will give you a better understanding of the career and things you are expected to know. They will also prepare you for the Law School Administrative Test or LSAT. As you may already know every law program in the country requires students to pass this test. You should not wait until your senior year to take the LSAT in fact most people should take it in their junior year of undergraduate school. You should also find out the requirements of different law schools you are thinking about. The things that schools generally will ask for is a transcript, personal essay, LSAT score and some letters of recommendation. You should do as well as possible in undergraduate school, because acceptance into the best law schools is as competitive as it gets. Make the argument that your last grading periods are more reflective of your ability to succeed in an academic setting than your earlier grading periods. Although one miserable semester may play havoc on your overall GPA, you need to advocate for yourself and to inform the law schools where you have improved and why. Individuals who have been out of undergraduate school for a number of years may be able to take a course or two on the Master's level. In this way, you can put yourself back into a classroom setting, discipline yourself to a student's schedule, try to ace those grades (no B nor C grades, please), and be able to get an academic letter of recommendation from your professor. Once you have graduated from undergraduate school, you no longer have the leverage of improving your grades explains LA Probate Law. If your overall cumulative Undergrad Grade Point Average (UGPA) does not appear competitive with the UGPA range that law schools publish, but your last grading periods are strong and above average, focus on your strengths.

LA Probate Law Long Road to a Law DegreeGraduate Law School

These Masters of Science in Education Law programs do not require passage of the Law School Admission Test, however, they may require taking the Graduate Record Examinations A law school program will generally last about three years. The first half of your program will include most of the classroom hours says LA Probate Law. You will study a lot of the things that the average person needs lawyers for; that includes contracts, constitutional law, legal writing and procedures. The second half is when you choose what type of law you will specialize in. The different types of specializations include family law, tax, labor, international, criminal law and others. You should think about your path before you get to the moment when you need to choose, but chances are that before you apply to a law school you will already have an idea of the type of law you want to pursue. After years in the industry, education professionals may recognize a need for greater understanding of Education Law. In response, Nova Southeastern University developed and ABA approved Masters program in Education Law for non-lawyers..


Make sure that you get some experience while you are in law school, because this is the best time to do it. Contract jobs are a great way to gain work experience in the legal field. You have the education, the ability and the ambition. Now all you need is work experience. As law firms and corporate legal departments cut costs and operate with leaner staff, more legal employers seek candidates who can hit the ground running. So, how can you gain work experience if no one will give you a chance? As law firms and corporate legal departments seek ways to reduce litigation costs, contract employees have become a hot commodity in today’s legal market explains LA Probate Law. Temporary employment is another method of gaining valuable work experience. Even if the firm of your dreams won’t hire you as an attorney, many law firms have a host of other high-turnover positions which they must continually fill. Internship and externship positions can be found in law firms, corporations, banks, insurance companies, non-profit organizations, the government and other businesses. These positions are usually unpaid, although sometimes you can earn school credit. Internships are frequently not advertised and you may have to do a little digging to locate one. Your local law school, paralegal school or legal secretarial program’s career service office is one of the best sources for locating an internship. Public interest organizations will not assign meaningless busywork but will instead give you substantive, meaningful tasks that make a difference in the lives of people and the community. Many non-profits, public interest organizations, legal clinics and legal aid offices are desperate for volunteers. Although unpaid, volunteering is a great way to obtain quality legal work experience.  

LA Probate Law Long Road to a Law Degree

LA Probate Law Explains What is A Limited Conservatorship