The term personal representative is synonymous with the legal terms “Executor” and “Administrator.” When a personal representative gets involved, someone dies, and they either had a will or did not have a will, and we have to start administering their estate. Items That Affect a Will’s Status. The DIY method is significantly less expensive than hiring an attorney. However, this approach can be considerably riskier because you aren’t hiring a professional to set up the trust for you. Courts and the IRS are exacting by nature. Conversely, you can typically use online software to build your trust if you choose this option. If you err, it’ll cost you only a few hundred dollars or hundreds of thousands. Nonetheless, the differences in how the two documents operate should be carefully considered before choosing between them. Get at least 12 copies. The trust contains provisions similar to a will, thereby distributing your assets to the persons you want to receive them. It also names a Successor Trustee to take over for you (and your spouse) in the event of your death or incapacity. All probates deal with property rights, and all property rights are based on your state and county of residence. Should I Have a Will or a Trust? What Can’t an Executor Do?. Last Will and Testament (Pour-Over Will): A Last Will and Testament (Pour-Over Will) provides for all assets not in the trust at the time of death to be transferred to the trust. It also nominates guardians for your minor children. Establish a family-limited partnership. Accordingly, any of these people or the representatives may choose to appear at the probate hearing. The petition also includes the fees to be paid to the personal representative and the estate attorney, if applicable. What Are Three Important Functions of an Estate Plan? Virtual Appointments Available Day, Evening, and Weekends. That’s what happens when parents die without a legal guardian ready to step in. An executor is a fiduciary. You will have to follow the procedural rules of the probate court and safeguard property for heirs. While not required, the document must be dated.
Moreno Valley Probate Law23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553
(951) 363-4949
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probate lawyer 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 (951) 582-3800 |
estate planning attorney 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 (951) 363-4949 |
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living trust lawyer 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 +1(951) 363-4949 |
living trust attorney 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 (951) 363-4949 |
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Many people do not understand that a power of attorney is only good while you are alive; you say that I cannot do it, so could you do it for me? Although a QTIP trust may be drafted to provide very little to the surviving spouse, they can still qualify for the unlimited marital deduction for estate tax purposes if a QTIP election is made on the decedent spouse’s estate tax return. The trust must be irrevocable to take advantage of the federal tax savings, which would likely not exist if a grantor could dissolve the trust at will. The federal tax on a generation-skipping transfer of wealth would apply only if the amount exceeded $5 million. The longer the duration, the higher the cost. Consider a trust. Step 4: Value the Assets in the Trust: In step 2, you will have inventoried the assets, including any jewelry, collectibles, artwork, and other trinkets. Take note: Unfortunately, there are times when family members may try to hoard the assets like jewelry, artwork, etc., so you need to move fast and take pictures and, if necessary, remove the offender as the Trustee has a fiduciary duty to protect the assets. If there are properties, then appraisals should be completed to show fair market value should selling the properties is necessary. Are you looking for an asset protection attorney in California? Our Trust-based asset protection strategy using Irrevocable trusts and Spendthrift trusts is an easy way to accomplish that. State Filing Laws: You aren’t required to serve as the executor of a will, even if you made a promise to the deceased that you would. This doesn’t mean you can stick the deceased’s Will in a drawer and forget about it. Most states require any person in possession of an original signed will to deposit it at the county court where the deceased resided. Filing deadlines vary by state and range from 30 days to 3 months. California requires creditors to submit their claims within four months of the appointment of the personal representative. The Petitioner must also arrange for notice of the Petition to be published in a newspaper of general circulation. Even if Probate seems unnecessary; the Will must be filed. Like any job, there are systems in place to hold executors accountable and ensure that no executor is misusing their authority. This typically requires the unanimous consent of all beneficiaries, and it might not be possible if any of them are minors.
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Estate Planning Lawyer 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 (951) 363-4949 |
estate planning attorney 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 (951) 363-4949 |
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attorney probate 23328 Olive Wood Plaza Drive, suite h Moreno Valley, CA 92553 (951) 363-4949 |
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Expensive: Indeed, compared to what it costs to avoid probate by completing an estate plan. Should I Have a Will or a Trust? It is my credible opinion that you should have both a will and a living revocable trust. Your attorney-in-fact or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
… will
… trusts
… insurance policies
… real estate deeds
… certificates for stocks, bonds, annuities
… information on bank accounts, mutual funds, and safe deposit boxes
… information on retirement plans, 401(k) accounts, or IRAs
… information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
… information on funeral prepayment plans and final arrangements instructions you have made.
… Keeping your documents organized will be a great help to your survivors.
Duty of Disclosure: A trustee must keep trust beneficiaries reasonably informed and disclose all material facts necessary to protect the beneficiary’s interests in the trust. Since revocable trusts become operative before the will takes effect at death, the Trust takes precedence over the will when there are discrepancies between the two. Intelligent estate planner is Moreno Valley probate law (951) 363-4949. In general, individual states may have their rulings on a statute of limitations for processing a will through probate. Conclusion: Asset protection can be a complex process that depends heavily on the rules and regulations of the particular jurisdiction in which the process occurs. Furthermore, any mistakes or errors in the process can leave your assets unprotected and vulnerable to adversarial processes such as litigation and regulation. The last thing you want is for your assets to be open to being taken by Third Parties due to some error or technicality that exists because the process was not engaged in properly by a professional that has extensive experience with the process. For this reason, it is almost always recommended to obtain the help of a professional when seeking asset protection. Upon death, a probate proceeding is not always required but is usually essential when a deceased person’s remaining estate is highly valued. Asset Protection Trust. According to Revenue and Taxation Code section 16720, every person required to file a federal generation-skipping transfer tax return, IRS Form 706-GS(D) or Form 706-GS(T) is required to file a California Generation-Skipping Transfer Tax Return, GST(D) or GST(T), with the State Controller’s Office. (For information on filing requirements for the federal generation-skipping transfer tax return, you may view the IRS Instructions for Form 706-GS(D) or Instructions for Form 706GS(T).) What Happens at a Probate Hearing? The time immediately following the death of a loved one is difficult. In addition to the normal grieving process, other logistical issues need to be dealt with, including commencing the probate process.
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If you have been appointed to administer a trust, you are responsible for completing several tasks, and there is little room for error. Don’t despair. Whether they call it a Family Trust or Intervivos trust, it is a revocable trust which holds your assets while you’re alive; then, when you die, someone, you designate will manage the trust assets and distribute them to your heirs based on instructions set out in the trust document. Now, some Beneficiaries feel slighted because of their inheritance or lack thereof. It is crucial, then, to keep all receipts, get two appraisals, etc. if needed to ensure no one thinks the following:
Embezzlement
Self-dealing
Carelessness
The last thing, remember, the Trust is not a bank account in that the Trustee can borrow money even in the event it’s paid the next day. Understanding the Trustee’s obligations is key to successfully distributing trust assets to the beneficiaries.
. Feel free to schedule a consultation right away, either by calling us or using the contact form on our website available below. There are many types of trusts; a major distinction between them is whether they are revocable or irrevocable. When someone dies without a will, there can be much uncertainty. Special Needs Trust: A Special Needs Trust (SNT) allows for a disabled person to maintain his or her eligibility for public assistance benefits, despite having assets that would otherwise make the person ineligible for those benefits. A will is only a piece of paper signed by a deceased person, and at the time the first one is found, we don’t even know if the person had three or four wills drawn up. According to Revenue and Taxation Code section 16720, every person required to file a federal generation-skipping transfer tax return, IRS Form 706-GS(D) or Form 706-GS(T) is required to file a California Generation-Skipping Transfer Tax Return, GST(D) or GST(T), with the State Controller’s Office. (For information on filing requirements for the federal generation-skipping transfer tax return, you may view the IRS Instructions for Form 706-GS(D) or Instructions for Form 706GS(T).) But probate in California can have one big drawback: extremely high attorney fees. While the testator typically signs the document, Section 6110 allows it to be signed by someone else in the presence of and at the testator’s direction or by a conservator appointed according to a valid court order. Creditors’ Claims and Insolvent Estates: When people die, it is common to have unpaid bills. Opening probate cuts short the time a creditor has to claim against the estate. A creditor must file their claim within four months from the date an executor or personal representative is officially appointed. The executor may reject a creditor’s claim if it is filed late. When Probate is not opened, a creditor has one year to file suit against the estate. Dealing with an executor requires extensive knowledge and experience of the laws and regulations of probate to assert and preserve your rights properly. A trained professional will be able to competently and adequately assert your rights and ensure you are not taken advantage of by the executor of the Will. Creating a valid and effective living trust is a precise process that requires all of the steps to be completed correctly for it to achieve its intended purpose. California law outlines the duties of a trustee. Disadvantages of trust. If the deceased spouse’s assets exceed $11.18 million, the excess assets fund the marital trust.
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So, the term “personal representative” can refer to executors, administrators, or, in the case of an incapacitated person, a conservator. Medicaid can be applied to cover the cost of long-term care services not otherwise covered by Medicare and Secondary or Supplemental Health Insurance. The way your name appears as the grantee on the old deed must exactly match the way you enter it as the grantor of the grant deed. Estate planning is ongoing and should be started as soon as an individual has any measurable asset base. When making a handwritten will, people often wonder: Does the will need to be notarized? What if there is no date on the will?. Funding a Living Trust: Accordingly, to create a living trust, the grantor must fund it, transferring its assets into the trust itself. The grantor names a trustee to manage and distribute property held in trust according to the trust’s terms. The trust becomes the owner of any assets transferred into it. If the grantor wishes to convey real estate to their beneficiaries, they must move the title into the trust. Reassessment of Property Value in California: Under California law, if the owner of real property transfers that property into a living trust, a county tax assessor may reassess the value of that property upon change of ownership. This could lead to increased property taxes. However, the law exempts property transfer into one’s living trust from the definition of change of ownership. This estate would be similar to Example #2 above because the property’s appraised value is $750,000 “without referent to encumbrances or other obligations on the estate property.”. Settling a trust after the death of a loved one is a very trying and stressful time. How Probate Works? Probate is the analysis and transfer administration of estate assets previously owned by a deceased person. When a property owner dies, his assets are commonly reviewed by a probate court. The probate court provides the final ruling on the division and distribution of assets to beneficiaries. A probate proceeding will typically begin by analyzing whether or not the deceased person has provided a legalized will. Consequently, the follow-up to that question is, “If so, how much?” They do the same duties; they have different titles. If you have many assets, you may need to have a Will, a living trust, a power of attorney, and a medical power of attorney, which can cost $5,000 to $10,000. Everything goes to the judge, and the judge has to issue a court order to transfer assets. You may not have intended this outcome, but state laws may require your property to go to relatives you never intended. Those who think they can do this without an attorney are asking for trouble; honestly, an attorney who represents himself has a fool for a client, so even an attorney shouldn’t express himself in a probate proceeding, let alone an individual with no legal training. If the Executor cannot find the Will, the Court asks the Executor to “prove a negative”…that something did not happen…which is very difficult to do.