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Tax, Trust and Probate Attorneys, Newhall, Santa Clarita and Valencia, California.

| What if No Will? | Trust Administration | Probate in California |
| Joint Tenancy Avoid Probate? | Small Estates Administration |


California Probate, when a loved one dies, the trauma of the emotional impact is often compounded by the pressures and worries associated with administering the deceased’s estate. Whether or not the decedent had a living trust, we can help in all aspects of post-death administration.

For larger estates and living trusts, we can provide full trust administration services. If there was no living trust, we can assist with California probate administration.


Trust Administration

Even when a decedent had a trust and affairs properly titled to avoid court intervention, much work remains for the successor trustee. We can represent successor trustees in ensuring that they fulfill all duties to the beneficiaries of the trust to avoid later challenges from beneficiaries. The trustee has the duties to account; act with the loyalty required by law; maximize benefits to the beneficiaries; avoid self-dealing; and the duties of notification and information.

We can assist trustees with specifics such as:

  • Notifying the State Director of Health Services if the deceased was receiving Medi-Cal benefits
  • Notifying the Social Security Administration if the deceased was receiving Social Security benefits
  • Filing the will with the Clerk of the Superior Court
  • Obtaining control of trust property and valuing assets
  • Filing IRS Form 56, Notice of Fiduciary Relationships
  • Filing the decedent’s last income tax return
  • Notifying beneficiaries
  • Filing change of ownership statement with any counties in which the decedent owned property
  • Claiming exclusion from property tax reassessment for parent-child transfers
  • Compiling and paying debts and expenses Distributing assets

If you require assistance with any of these duties, please
Contact Mortensen Law Office,
(661) 799-8035


California Probate Administration

WHAT IS PROBATE IN CALIFORNIA?

Probate in the state of California is a court-supervised transfer of your property to your heirs. Many people mistakenly think that having a Will avoids probate. The opposite is generally true. Having only a will almost guarantees that your assets will have to be probated.

WHY ARE SO MANY PEOPLE SETTING UP LIVING TRUSTS TO AVOID PROBATE IN CALIFORNIA?

  1. Probate Is Expensive. In general, attorneys love probates because we are entitled to charge large fees on a probate. However, what is good for attorneys is not what is best for your heirs. In California, statutory probate fees range from 4-8% of the gross value of your estate. Court costs and appraisal fees are added to that.
    A properly created and maintained living trust avoids probate. When you are gone, your successor trustee simply pays your last bills, reads your trust to see who gets your property, and then distributes the property. This all occurs without reporting to the probate court.
  2. Probate Means Delay. A probate takes a minimum of six months (usually over a year) to get your assets to your heirs. We feel this delay is actually worse than the expense of a probate because of the potential hardship and emotional drain. On the other hand, the bulk of the property in a living trust is generally distributed in a few short weeks.
  3. Probate Invades Your Privacy. A probate is open to the public. In a probate, anyone can go to the court clerk's office and find out a surprising amount of information about the deceased and his or her family. A living trust, on the other hand, avoids such an invasion of privacy. No probate is needed if the living trust is set up and maintained properly. With a living trust, only your heirs and your attorney will know the details of your affairs.
WHAT IF I OWN REAL ESTATE IN ANOTHER STATE?

If you do not have a living trust, your heirs will likely have to go through two probates, one in California and another in the other state where you own real estate. A living trust will allow you to avoid probates in both states.

DOES A CALIFORNIA LIVING TRUST AVOID A CALIFORNIA PROBATE?

A living trust enables you to avoid probate in California if you set it up correctly and make sure pretty much all your assets are in the trust.

CAN'T I JUST AVOID PROBATE IN CALIFORNIA WITH JOINT TENANCY?

For a married couple, holding their assets as joint tenants together does avoid probate upon the death of the first of them. However, as is explained below, joint tenancy may very well have a high income tax cost to the surviving spouse. Furthermore, a major problem will arise when the second spouse dies, or if both spouses die together - a probate will be required at that point.

In addition, many problems are caused by owning property in joint tenancy with a child. For example, your child's creditors might try to seize your property. Furthermore, at your death, your property could end up going to only one of your children at the expense of your other children or grandchildren. A living trust can avoid all these problems.

WHY DOES JOINT TENANCY CAUSE INCOME TAX PROBLEMS FOR A COUPLE IN CALIFORNIA?

In short, if a couple holds appreciated property, such as real estate, as joint tenants and one of them passes away, the surviving spouse will have income taxes to pay if the property is sold. This occurs because only half of capital gains are eliminated at death under joint tenancy. The cost may be tens of thousands of dollars or even more. On the other hand, if the same couple were to set up a living trust and transfer the appreciated asset to the trust as community property, on the death of the first spouse the survivor could sell the asset and have no income tax to pay.

WHY SHOULD I WANT TO AVOID A CONSERVATORSHIP?

Medical science is making great strides, but an unfortunate consequence of longer life spans is many older people cannot manage their own affairs. If you become incapacitated by a stroke or another cause and do not have a trust and durable powers of attorney, your family may have to petition the court to have a conservator appointed for you. As with a probate, the purpose of a conservatorship is actually quite simple - enabling someone to make decisions for you and manage your financial affairs. The problem is that as with a probate, a conservatorship is an expensive and complicated procedure. Having a living trust and durable powers of attorney almost always avoids the need for a conservatorship. If you become incapacitated, whomever you have named in the trust and durable powers takes over for you without having to go to court. In particular, the "Power of Attorney for Health Care," one of our basic estate planning documents, will give your family the legal authority to make health care decisions for you, including the authority to make end-of-life decisions such as the decision to "pull the plug."

Probate in California is a court-supervised transfer of a decedent’s property to the heirs. It becomes necessary when the decedent did not have a living trust, regardless of whether or not there was a will.

What if the Estate is Small? For small estates with assets totaling less than $150,000, we can provide informal administration, such as Petitions to Determine Succession to Real Property (Estates $150,000 or Less), Affidavits re Real Property of Small Value ($50,000 or Less), or Affidavits for Collection without Letters of Administration for Personal Property of Deceased Person Not Exceeding $150,000 in Value. Please contact us for further information on these summary administration procedures.

If an estate amounts to less than $150,000, probate will be informal and will not require the appointment of a decedent’s representative. We will prepare the necessary affidavits and collect and distribute the assets. Please contact us for further information.
Please
contact us, (661) 799-8035 for further information.

What if there is No Will? If there is no will for the decedent. Please contact us to file a petition with the court to have an administrator appointed.

Have you been appointed as the executor of the decedent’s will? We can help you fulfill your many responsibilities, including:

  • Filing petitions, such as Petition to Administer Estate and Petition for Probate
  • Collecting, re-titling and managing assets (deeds, tax bills, loan balances, insurance policies, retirement accounts, stocks, bonds, notes, bank accounts, automobiles, etc.)
  • Sale of real property
  • Investing estate property
  • Paying debts and expenses
  • Filing tax returns
  • Distributing assets
  • Publishing notice to creditors in the newspaper

Mortensen Law Office
Tax, Trust & Probate Attorneys, P.C.
22807 Lyons Avenue
Newhall, California 91321
(661) 799-9225

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