The Law Offices of Gose and Lechman
A Law Corporation
1200 Paseo Camarillo, Suite 295
Camarillo, CA 93010
(805) 389-7374 (Voice)
(805) 389-7375 (Fax)
LAW OFFICES OF AREAS OF PRACTICE GOSE AND LECHMAN Estate Planning A Law Corporation Gregory R. Gose* Wills & Trusts Joseph Lechman* 1200 Paseo Camarillo, Suite 295 Probate Camarillo, California 93010 Taxation *Masters in Taxation Law, New York University School of Law TELEPHONE (805) 389-7374 Corporation FAX (805) 389-7375 Limited Liability Companies WEBSITE – GLL-LAW.COM
Dying Without an Estate Plan Isn't Smart
An unplanned estate can be costly. Your family can incur substantial estate taxes as well as other financial losses from poorly managed assets. Your estate may be large enough to become a tax drain. Appreciating real estate, retirement plan assets, investment growth, and above-average income are signals that you need an estate plan to assure your family's long-term financial welfare.
Anyone who owns assets needs an estate plan.
An estate plan arranges what will happen to your assets after your death -- who will get them and how. And the overall value and nature of your assets determines whether you need a plan that's simple or one that's sophisticated.
The simplest plan of all is the one you never want to use. If you die without a will, state law determines who will get your estate, regardless of what you might want. A will alone may be adequate as an estate plan when you are young. At that time, you (or you and your spouse) are likely to have fewer assets. Once you acquire significant assets (in California, more than $100,000 of investments or any real estate), a will is generally insufficient. In addition, once you have children, the question of guardians occurs, as well as funds for the children's care if you die prematurely or become disabled. Your estate plan has to address those needs, and resolving them adequately will likely take more than a will.
As your investments and other assets grow over time, preserving your wealth and avoiding taxes becomes increasingly important. At that point, you need a more sophisticated estate plan to minimize the taxes that will be owed and provide for management of your assets after your death.
You Can't Ignore the Danger of the Estate Tax
The top federal estate tax rate will be 55% (for 2013 and thereafter) - a lot higher than income tax rates. You cannot assume your estate won't be large enough to be hit by the estate tax. Not only is it one of the most expensive taxes, but it is due within 9 months after your death (or nine months after your surviving spouse's death, if your estate is properly planned to take full use of the marital deduction).
This booklet will tell you more about how an estate plan can prevent or reduce the tax on your estate, efficiently administer and distribute your assets to your beneficiaries after your death, and protect your family's financial welfare. Developing your estate plan will require careful and specialized help. The Law Offices of Gose and Lechman can help you set up and administer a custom plan that is just right for your needs. Take the first step by calling us right after you
have finished reading this.
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Introduction to Probate
WHAT HAPPENS WHEN YOU DIE?
Most people know that when you die, any property you own after payment of debts and expenses of administration will pass to those persons named in your will. If you die without a will, your property passes to those relatives that California law-makers think you would have given it to had you thought about it during your lifetime. These relatives generally consist of your surviving spouse, children, parents, brothers and sisters, grandparents, etc. What most people do not know, however, is the rather complicated process required to transfer your property to your successors. It is not nearly as simple as some people think.
After your death, the beneficiaries named in your will or your heirs-at-law cannot take your will to your bank and withdraw your funds. Nor can your successors sell your real estate, stocks and bonds, automobiles, or any other property owned at your death. Instead, title to your property passes to your beneficiaries or your heirs through the court-supervised process known as probate.
WHAT IS WRONG WITH PROBATE?
It is slow
The entire probate process is done under court supervision with strict procedural rules. All of your property is frozen until someone petitions the court for appointment as the executor of your estate. Assuming no one objects to the appointment, it takes about 30 days for the court to act.
Once appointed, your executor generally must petition the court to approve any important estate transactions, such as sales of property or distributions to beneficiaries. Furthermore, no matter how fast your executor acts, no property can be distributed to beneficiaries until four months after the executor is appointed, all creditors have been paid, and after a noticed hearing. Due to statutory waiting periods and filing delays, it often takes over a year to distribute a decedent's estate to the beneficiaries. Of course, any complications will create additional delays.
Example. John Wayne's will was admitted to probate in 1979 and probate
hearings were still being held as late as 1990.
It is expensive
On average, total probate costs are often between 5% to 10% of the total gross value of the estate. These costs consist of court filing fees, legal publication costs, probate appraisers, accountant fees, attorneys' fees, and executor's fees. Attorneys' and executor's fees are set by law, ranging from 1% to 4% of the gross estate for each. If anything unusual occurs with the probate, such as a will contest, the fees will be much higher.
Attorneys' Fees For California Probate Estate Value Attorneys' Fees $100,000 .................................................... $4,000 $200,000 .................................................... $7,000 $500,000 .................................................. $13,000 $1,000,000 .................................................. $23,000 $2,000,000 .................................................. $33,000 $5,000,000 .................................................. $63,000
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Does not include court costs, publication costs, or executor fees.
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It invades your privacy
All probate proceedings are a matter of public record. Anyone can go to the court and find out the details of an estate. All they need to know is the name and the year that the person died.
Example. A perfect stranger can look up actress Natalie Wood's file and see all the
details of her almost $6 million dollar estate, including her interest in the television
series Charlie's Angels (valued at $2.3 million), royalties from movies, investments
in real estate, oil and gas leases, artwork, a yacht, and over nine separate bank
accounts. It's amazing how detailed the records are. Even half of an $83.31 refund
from the phone company is included in her assets. Most importantly, you can see
exactly how much she left her mother, sisters, daughters, and husbands, and their
addresses at the time of death.
Obviously, probate files can make for pretty interesting reading for the curious (or nosy). Would you want anyone to be able to find out what you owned--and owed?
If you own real property in several states, a probate must be opened in each state. Even worse, unless your attorney is licensed in multiple states, you will need to hire multiple attorneys to handle the several probates.
Easy to contest
Probates are very easy to contest by disgruntled or disinherited heirs. All of your heirs must be given notice when your will is offered for probate and your proposed executor asks to be appointed as the executor. If any person is upset about your will or your proposed executor, they can simply show up at the hearing and object to whatever action is proposed. They do not even need to hire an attorney. A contested probate will often take years to sort out, and most are settled just to avoid having the estate consumed in legal fees.
WHAT HAPPENS WHEN YOU BECOME INCAPACITATED?
If you become incapacitated, someone must collect your income, pay your bills, and conserve and protect your assets for you. Of course, if you have a joint checking account with a trusted relative or friend, they can pay your bills until the account is exhausted. But what if your name alone is on your bank accounts? And what about the rest of your property? Only you can
legally cash your checks, collect your income, or write checks to pay your bills out of your accounts. And only you can sell or transfer your titled property, such as stocks, bonds, your home, cars, or investment property.
Once you can no longer competently handle your financial affairs, one or more of your friends or relatives must petition the court to be appointed to act on your behalf as your legal conservator.
Your bank will only release your funds for payments of your debts after seeing a court order nominating someone as your conservator.
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Like the probate that occurs after your death, a conservatorship is done under strict court supervision. The court-supervised conservatorship prevents someone from taking over your property and squandering your possessions. Your conservator will make financial decisions for you only after a public hearing and court approval. Furthermore, the court will require your conservator to file periodic accountings with the court, draining your estate due to costly accounting and attorney's fees.
Like the probate proceeding that occurs at your death, the conservatorship process is expensive, time consuming, open to the public, and most of all, you and your family lose control of your assets.
WHAT IS A GUARDIANSHIP?
Very few people realize that if minor children inherit property (e.g., from grandparents), their parents cannot automatically take control of the inheritance for the benefit of the children. Whenever a minor child is to inherit property (including real estate, stocks, bonds, etc.), is to receive life insurance or retirement proceeds, or becomes a joint owner of property, the court must get involved to protect the children's interests. Only a court-appointed guardian can sign on behalf of a minor child to transfer legal title to the minor's property. Just like a conservatorship and probate, guardianships are expensive, time consuming, and open to the public. Worst of all, the guardian must account to the court on a regular basis and explain how the minor's money has been spent.
The Living Trust Alternative
With a living trust, you can completely avoid the need for a conservatorship if you become incapacitated, a guardianship if minor children are involved, and probate when you die.
WHAT IS A LIVING TRUST AND HOW DOES IT AVOID PROBATE?
A living trust is a legal document that allows you to transfer ownership of your titled property (your home, other real estate, cars, stocks, bonds, bank accounts, etc.) and your other property (clothes, furniture, jewelry, etc.) from your individual name to something called a "trust," that you
control. Think of it as forming your own company, with you (and your spouse) as the sole employees. You personally don't own your property any more because everything is owned by your new company (your trust). However, as the employees, you (and your spouse) have complete control over it. If you can't manage your company, your successor can step in to manage it for you.
own nothing in your own name or have a living trust. The There are two ways to avoid probate--
living trust allows you to own nothing in your name, yet still have complete control over everything
in your trust's name. Nothing changes except the names on the titles. You still control everything
as you did before. Since you own nothing in your own name (everything is in the name of your trust, which you completely control), there is nothing to probate when you die or become incapacitated.
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USING A WILL USING A LIVING TRUST
Property Titled In Property Titled In
During Your Lifetime Your Name Your Trust's Name
(John Doe) (The Doe Trust)
？ ？ Successor Trustee Probate Upon Your Death Distributes Trust Assets (Court Supervised) (No Court Supervision)
HOW A LIVING TRUST WORKS
To understand how a living trust works, you need to understand the roles of the people involved.
When you set up your trust, you become what is known as the grantor (also called the settlor or
trustor). If you are married, both you and your spouse are grantors of your trust.
You will name a trustee to manage your trust assets. This can be anyone you desire, and is
usually yourself. If you are your own trustee, you will handle your affairs for so long as you are able. If you are married, you and your spouse will probably be co-trustees. This way, either of
you can automatically act for the other, just like a joint checking account. If one of you becomes incapacitated or dies, the other instantly controls all trust property with no court involvement.
Remember, neither of you own the property--your trust does and you simply manage the trust.
You don't have to be trustee of your trust if you don't want to. You can always name your children, a close relative, or a professional trustee such as a bank or trust company.
You will also name someone you know and trust as your backup trustee (also called a successor
trustee). Your backup trustee will step in and manage your trust if the initial trustee is unable or unwilling to act. To take over control of the trust, your backup trustee simply needs a copy of the trust and a death certificate if the initial trustee has died, or a statement from a doctor if the initial trustee is incapacitated. That is all it takes for the backup trustee to step in and manage your trust.
There is no court involvement, hearings, notice to heirs, or court investigations.
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Next, there are the beneficiaries of your living trust. These are the people who will get to enjoy and use the trust property. During your lifetime, you are the sole beneficiary and all trust property is used exclusively for your benefit. You will also name the beneficiaries who will enjoy your property after you have died. You can name your spouse, children, relatives, your favorite charities, or any other person as the trust beneficiaries who will receive the trust property after you have died. In this regard, your trust is very similar to a will.
Furthermore, most living trusts are revocable, meaning that you can change the beneficiaries at
any time. Again, this is just like a will that can be changed at any time up until your death.
WHAT HAPPENS WHEN YOU DIE?
When you die, your backup trustee acts like an executor if you had only a will--but does not report
to the court. The backup trustee pays your final bills (signing the checks as successor trustee), pays any taxes due, and then distributes the trust assets as you have instructed him/her to do so.
Since all of your property is titled in the name of your trust, it is very easy for your backup trustee to manage the trust. Remember, the only documents your backup trustee needs is a copy of the trust and your death certificate. The process is much quicker and less costly than probate.
Furthermore, your assets are not frozen and nothing is advertised or made public record. No one will ever know how you distributed your estate, other than the beneficiaries themselves. None of your "nosy" neighbors can go to the courthouse and read your trust or examine your property holdings. Finally, no "heirs" are invited to make claims against your estate.
WHAT HAPPENS IF YOU BECOME INCAPACITATED?
If you become incapacitated during your lifetime, your backup trustee (or co-trustee) automatically steps in and handles your financial affairs for you. Remember, all of your assets are in the name of your trust. All that your backup trustee needs to do is have a copy of the trust designating them as backup trustee and a statement from a doctor declaring that you can no longer manage your trust. Your successor trustee can then write checks, make deposits, pay bills, sell property, and anything else necessary to manage the trust for your benefit.
No court supervised conservatorship is required, and everything is done privately. You and your family are spared the entire frustrating, time consuming, and expensive process of having to set up a conservatorship and get the probate court's approval to spend your own money. If you recover, you simply start handling your affairs again as trustee and your backup trustee returns to being your backup. There is no complicated paperwork or procedure to regain control.
FOLLOWING YOUR INSTRUCTIONS
A living trust does give a lot of power to your backup trustee. However, the trust is a legally binding contract between you and your backup trustee. Your backup trustee must follow your
trust instructions in a prudent manner at all times for your benefit during your lifetime and for the other beneficiaries after you have died. Your backup trustee must also keep everyone informed of all actions taken as trustee.
If anyone didn't like what your backup trustee was doing, they could ask the probate court to intervene and supervise the management of the trust. Therefore, the power and protection of the
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court is available if you need it, but is avoided if you don't. If your backup trustee does anything that is clearly not in the best interests of the beneficiaries, the backup trustee can be removed by the court and held personally liable for any damages.
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A living trust will avoid the need for a guardianship if you have minor children. If you die and the beneficiaries of your living trust are minor children, your successor trustee will simply retain their interest in trust for them until they become adults (or any other time chosen by you). As long as the minor child's interest in the trust is held and managed by the adult backup trustee for the minor child's benefit, the court never needs to step in and sign any legal document on behalf of the child.
If you are married with children from a prior marriage, you must have a trust to provide for your surviving spouse and protect your children. If you die first, you probably want to provide for your spouse during his/her lifetime, but may want the balance of your estate that your spouse doesn't spend during his/her lifetime to pass to your children. If you give property to your spouse outright, there is no guarantee that your spouse will give anything to your children when your spouse dies.
Joe & Mary
？ ？ Mary Inherits Joe Dies ； Joe's Share
？ Mary's Family Joe's Family Inherits Everything Inherits Nothing
With a living trust, you can leave property in trust for your surviving spouse. Your surviving spouse can use any of the trust property for his/her lifetime, but you can instruct the trustee to then distribute anything not needed by the surviving spouse to your children when your spouse
Providing For Your Spouse/Protecting Your Heirs
Joe and Mary ？ ？ Joe's Death Payments for Mary's support,
Joe's Share Stays in health, maintenance, Mary Has Her Share and education. Trust For Mary
Mary's New HusbandJoe's Heirs Mary's Death
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