Probate is Going to Get Worse in These Tough Economic Times
One of the typical goals in estate planning is to avoid the probate administration of your estate. The principal reasons for avoiding probate administration are: (1) the cost; and (2) the delay associated with the process. In Los Angeles, the process of probate administration is controlled by the Los Angeles Superior Court system, nation's largest trial court system, with 600 courtrooms in 50 courthouses throughout the county.
These tough economic times have caused problems for all types of governmental agencies and private businesses. California, in particular, has suffered from massive budget operating deficits in recent years that have required severe cutbacks in most areas of governmental services. Over the past year or so, these budgetary problems have had a direct impact on the Los Angeles Superior Court system. Court fees, those charged for filing petitions and various pleadings with the Los Angeles Superior Court, have been slowly raised for most filings, including probate filings. Starting in July 2009, the Superior Court implemented a monthly furlough program, where the courts were closed the third Wednesday of every month. While the employee furlough program has been difficult, court personnel have made Herculean efforts to continuing the orderly processing of legal matters.
Unfortunately, the news of California budgetary problems is only growing worse and, earlier this week, there was a stunning announcement that will undoubtedly impact the speed of the probate administration process. On March 17, 2010, Presiding Judge Charles McCoy announced that the Los Angeles Superior Court will lay off 329 staff members and closing 17 courtrooms county-wide. The layoffs will most likely not be the last of the personnel cuts. Court officials predicted 500 more people could be laid off and 50 more courtrooms closed by September 2010. In announcing the cuts, Presiding Judge Charles "Tim" McCoy warned of delays and longer lines. "When you cut this deep into the workforce of this court, the system must ultimately wear down,"McCoy said.
Now, more than ever, it is important to create an estate plan that avoids the cost and delay associated with the probate administration process. A living trust is a private agreement that allows your chosen fiduciaries to administer your estate privately, outside of the Superior Court. A living trust, combined with powers of attorney, allow your loved ones to privately manage your affairs in the event of your sudden incapacity. These documents, working together, allow your loved ones avoid having to file a probate administration proceeding, or seek a conservatorship, through the Los Angeles Superior Court system. A well-crafted estate plan is usually significantly more economical than relying on the default probate systems administered by the Los Angeles Superior Court. If you have not done so, create an estate plan today—your loved ones will be grateful for your foresight.
Even When Done Correctly, Managing Finances During Incompetency Can be Challenging
The first article discussed the challenges faced by one couple who, after hiring an attorney to prepare a durable power-of-attorney, presented the document to Boston-based Fidelity Investments, where the couple held their retirement accounts. Despite the fact that the power-of-attorney had been prepared by an attorney, Fidelity initially advised the couple that their retirement plan didn’t have “a power-of-attorney provision.” In other words, Fidelity would not honor the power-of-attorney. Fortunately, Fidelity is reviewing its policy and anticipates being able to accept permanent versions of powers-of-attorney in the next few months.
Another article illustrates the problems allegedly faced when a son, David, went to access his father’s IRA accounts to pay for his father’s 24 hour care. According to David, he was required to make nine trips to Bank of America before bank officials allowed David to access his father’s IRA accounts to pay for his care. Some of the delays encountered by David included the bank’s demand to see the original document, the bank refusing to allow David to act alone because he was named as a co-attorney-in-fact, and even a legal interpretation by the bank’s counsel that the power-of-attorney did not cover the IRA accounts.
While these situations are frustrating, it is important to realize that the alternative—not planning—is many more times more frustrating and expensive. Using David’s situation as an example, without a power-of-attorney no bank would allow David to access to his father’s accounts. In California, David would be forced to apply to the court to obtain a conservatorship over his father. The conservatorship process can take weeks and requires that the court appoint counsel for David’s father. Between court costs, attorneys, delays and other problems associated with conservatorships, David would most likely have spent several thousands of dollars simply to obtain access to his father’s money to pay for the care. Such expenses may have made the difference between allowing David’s father to remain in his home or transferring to a facility.
When planning for incapacity, a power-of-attorney is a critical document. As these stories illustrate, however, it is frequently a good idea to check with your financial institutions regarding their policies concerning powers-of-attorney. By insuring that you are in compliance with the institution’s policies before you become incompetent, you may save your loved ones a world of frustration.
