Orange County Probate lawyer & Living Trust attorney

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Need help with a trust, will, durable power of attorney, revocable trust (a.k.a. living trusts), conservatorship, guardianship or probate.

Do you have any of the following questions or concerns?

- What is probate?

- What are the steps of probate?

- How do I avoid probate?

Today more Americans are employing revocable (or "living") trusts to evade probate and to control their estates both during their lives and after their passing. An inclusive estate plan should also consist of a pour-over will, advanced health care directive and durable power of attorney for assets. Occasionally, a conservatorship or guardianship should be implemented to coordinate decisions made on the person's behalf.

Tustin Probate Law Offices
315 Centennial Way
Tustin, CA 92780
Telephone: 714.665.6600
Facsimile: 714.665.6603
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Anaheim Probate Law Offices
(moved to Tustin)
Telephone: 714.520.5330

Email: divorce.attorney.family.law.lawyer@gmail.com

Call now to Schedule your Free Consultation

Affordable Living Trust & Probate Attorney Bettina L. Yanez

714.665.6600

Orange County probate attorney, Bettina was admitted to the practice of law in California, her office is located in Anaheim, serving Orange County and Los Angeles County offering Bilingual legal services. She is a member of the American Bar Association, The California Young Lawyers Association, The Los Angeles County Bar Association, The Orange County Barristers and the Orange County Bar Association.

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What is probate ?

Probate is the legal course of administering the estate of a deceased individual by get to the bottom of all claims and distributing the deceased person's property under the legitimate will. A surrogate court determines the soundness of a testator's will. A probate makes clear the instructions of the deceased, chooses the executor (the person responsible for) as the personal rep of the estate, and referees the interests of heirs and other parties who may have claims against the estate.

As with any legal going on matters, there are precise parts to probate and trust administration: Creditors must be notified and legal announcements published. Trustees need to be instructed on how and when to disperse assets and how to take creditors rights into account. A Petition to pick a personal representative may need to be filed and Letters of Administration obtained. Homestead property, which follows its´ own set of unique rules in states like Florida, must be dealt with separately from other assets. There are time factors involved in filing and objecting to claims against the estate. There may be a lawsuit pending over the decedent’s death or there may have been pending suits that are now continuing. Real estate may need to be sold to make correct distribution of assets pursuant to the estate plan or merely to pay debts. Estate taxes must be considered if the estate exceeds certain thresholds. Other assets may simply need to be transferred from the decedent to his or her heirs. At every step, expert knowledge and advice will help the process go smoother with as little extra stress as possible.

What are the steps of probate ?

Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account) legally held as "jointly owned with right of survivorship".

Property held in a living trust also avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate.

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.

A party may challenge the probate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to prove the claim. Such challenge may force the court to scrutinize the probate in further detail.

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

How to avoid probate

Probate generally lasts several months, occasionally over a year before all the property is distributed, and incurs substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust. A settlor, or a creator of a trust, transfers ownership of his real property from himself to a trust, which he controls and can revise (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of the property of the trust. Since a probate is a public process, a living trust shields private affairs of the deceased and the heirs from public scrutiny and helps the estate avoid estate tax.

Probate can also be avoided by setting up P.O.D (paid on death) designations on bank accounts and T.O.D (transfer on death) on brokerage accounts, 401ks and IRAs that pass automatically to designated beneficiaries.

As for real estate, a testator must add a named beneficiary to a deed by executing a life estate deed. The property can be passed several generations.

The key to avoiding probate is having named beneficiaries on all assets, as is the case for life insurance. A common error in life insurance is naming the insured's estate as the contingent beneficiary. Doing so will place the proceeds from that policy into probate.

Life insurance, savings accounts, and joint tenancies with the right of survivorship are testamentary substitutes to avoid probate.
A Segregated fund is a specific type of investment vehicle that is held inside a life insurance company. While segregated funds are not life insurance policies, and thus do not have a death benefit, they can be valuable substitutes for mutual funds held at a bank or other financial institution, due to the ability within them to designate a beneficiary, and thus bypass the estate, and probate.
Avoiding probate does not eliminate estate taxes. Under the federal estate tax law as modified, included in the definition of a taxable estate are property held in a living trust, life insurance, payable on death or transfer on death financial instruments, and other property a party receives upon decease of the decedent.

Inter vivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate. Generally, to avoid an estate tax, a person must give it away irrevocably or leave it to a qualified charity. However, the use of credit shelter trusts (AB trusts) can allow a married couple to preserve both unified credits, allowing up to twice the total estate to pass to heirs without estate tax. It may reduce or eliminate the tax.

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