California laws governing estate planning and administration can seem daunting, especially if you are new to the process. Fortunately for residents throughout San Luis Obispo County, attorney Dennis James Balsamo has the experience and temperament necessary to help you and your family plan for the future. If you are currently considering establishing a will, trust, power of attorney and/or advance health care directive, contact The Law Offices of Dennis James Balsamo, APLC today to schedule your free consultation.
In the state of California, estates valued at more than $150,000 must typically be probated. Keep in mind that assets held only in the name of the decedent are generally considered probate assets. Joint tenancy assets — i.e. assets shared by the decedent and another individual — are not considered probate assets. If the decedent is survived by a spouse, probate may be avoided with the filing of a spousal property petition.
Whomever was named the executor of your will should expect the probate process to last anywhere between six months and one year. He or she will need to file the will, along with a “Petition for Probate,” with the probate court in the county in which you lived. If and when everything is in order, the court will issue “Letters Testamentary” or “Letters of Administration,” granting your executor authority over all of your assets.
Independent Administration of Estates Act
In the state of California, probate is typically handled under the state’s Independent Administration of Estates Act, a law allowing your executor to take care of most matters without having to gain permission from the probate judge. Indeed, your executor can usually sell estate property, pay taxes and/or approve or reject creditors’ claims without court supervision.
Under California state law, your creditors have four months to come forward with their claims. Many estates don’t receive any formal claims from creditors, with executors choosing to simply pay any and all outstanding bills. However, if your estate does not contain enough money and/or assets to pay outstanding debts, the state will determine the order in which claims are to be paid using whatever funds exist in your estate. After all bills, debts and taxes have been paid, your estate will be closed and the probate process will be over. At this time your executor may legally distribute your estate assets to designated beneficiaries.
You should consider establishing a will (also known as a “last will and testament”) if you intend to leave your property to people (often family members or other loved ones) or organizations (typically charities). You should also look into creating a will if you’d like to name a person (i.e. your trustee) to manage any property left to children under the age of 18, as well as if you’d like to name a personal guardian to care for your minor children in the event of your passing. In order to make your will an official legal document, you’ll need to sign the paperwork in front of two witnesses, as well as receive their signatures.
Dying Without a Will (Intestacy)
If you die without a will (i.e. “intestacy”) in the state of California, the court will determine how your property will be distributed. California’s intestacy law distributes your property to your closest relatives, with your spouse and children taking precedent over all other members of your family. If you do not have a spouse or children, your grandchildren or your parents will likely receive your property. If the court finds that you have no living relatives, either by blood or marriage, the state of California will assume all of your property.
In the state of California, a trust is an arrangement in which your trustee holds the legal title to your property. It’s possible for you to be the trustee of your own living trust, maintaining complete control over all property held in the trust. A “living trust” (also called an “inter vivos” trust) is simply a trust established while you’re still alive, as opposed to one created following your death.
Advantages to Establishing a Trust
The main advantage to making a living trust is to spare your family the time and expense commonly associated with probate court proceedings. California has a simplified probate process for estates whose total assets are valued below $100,000. If you think there’s a good chance your net worth will be under this amount when you die, probate should be painless and relatively inexpensive.
You Should Still Write a Will
In the state of California, a will serves as a backup plan for any and all property that fails to make it into your trust. For instance, if you acquire new property and fail to add it to your trust before your passing, that property will not pass under the terms of the trust document. You can also use your will to leave someone property that you haven’t left to a particular person in your trust.
In order to establish a trust in the state of California, you must create a document stating who will inherit your property held in trust, as well as name whomever you’ll be using as a trustee. You will need to sign the document in front of a notary and transfer your property (i.e. your home, car, etc.) from your name to that of the trustee.
Advance Health Care Directives
In the event that you become unable to make your own medical decisions due to illness, an accident, or old age, establishing the right legal documents could be your lifeline. When you don’t write down your wishes about the kinds of medical treatment you’d like to receive and name someone you trust to oversee your health care, these decisions could very well be placed in the hands of estranged family members, doctors or even judges who may not know what you prefer.
Choosing Your Agent
In the state of California, the person you name to make decisions on your behalf is called your agent. Most people ask their spouse, partner, relative or a close friend to be their agent. It is important to remember that your agent cannot be your practicing health care provider, an employee of your practicing health care provider, an operator/employee of a community health facility, or an operator/employee of a residential retirement community.
When choosing your agent, it is crucial that you consider the person’s trustworthiness and reliability. It may be preferable to choose someone you think will be good at sticking to your health care wishes even if others (i.e. family members or other loved ones) argue against them — in other words, someone who is persistent, calm and loyal. Keep in mind that while your agent need not reside in California, he or she must be willing to travel to your bedside if circumstances warrant.
Contact Dennis Balsamo Today
There is simply no time like the present when it comes to planning for your future. If you or someone you love is currently struggling with an issue pertaining to estate planning and administration — be it regarding wills, trusts, probate and/or advance health care directives — contact attorney Dennis James Balsamo as soon as possible.