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Estate & Probate FAQ
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Do I need an attorney to create an estate plan?Given the seriousness of your estate plan and its potential impact on your family’s future, we highly recommend that anyone drafting an estate plan seek the advice of a knowledgeable estate planning attorney. State and federal laws are very particular about what can and cannot be included in a will, a trust, and other estate planning tools. To ensure that your plan is lawful and comprehensive, it is in your best interest to retain a lawyer.
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What is probate?Probate is a legal process in which a deceased person’s estate is administered and distributed to beneficiaries noted in their will. During probate, all debts are also paid off to creditors. If the person died without a will, state law will determine how the estate is distributed. A court-supervised process will be necessary to fairly administer the estate.
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What is a power of attorney and when might I need one?
A power of attorney is a legal document that grants one person the authority to make decisions on someone else’s behalf. The extent of that authority can be defined within the document. A power of attorney can be used to allow someone to: Make decisions on your behalf regarding medical care or end-of-life care Manage your finances in the event that you are incapacitated Sign a document on your behalf Manage property or sell real estate on your behalf Collect debts or handle business transactions on your behalf
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Will I have to pay the estate tax?Currently, California does not have an estate tax. Residents are, however, subject to the federal estate tax. Though the federal estate tax exemption fluctuates frequently, the current exemption is $11.4 million for individuals and $22.8 million for married couples. If your estate is worth anywhere near this amount, it is worth investing in estate tax planning services to maximize your tax shelter from transfer taxes.
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What is the difference between a conservatorship and a guardianship?California distinguishes a difference between conservatorship and guardianship. Guardianship involves minor children, while conservatorship involves a disabled or incapacitated adult. A legal guardian has the right and responsibility to care for a child as a parent would – they assume both legal and physical custody. In a conservatorship, an adult can be named the conservator of another adult who cannot care for themselves or manage their finances alone.
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How often should I update my will?It is a good idea to review your will every three to five years. We recommend sitting down with your Los Angeles estate planning lawyer and discussing any life changes you have experienced since last updating your will. Amend your will any time you undergo a major life experience, such as marriage, divorce, or the birth of a child. If you need to make any changes, you can file a codicil to your will, which replaces clauses in your existing will with new ones.
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What can I use to fund my trust?Trusts can be funded by more than just cash assets. You can also fund a trust with a vehicle, stock portfolios, investments, real estate, and valuable family heirlooms.
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Could probate leave my beneficiaries with a smaller inheritance?
It depends on the specific needs of your estate. During probate, all your leftover bills and debts are settled. If the executor is court-ordered, your estate may also be forced to pay them for their work. Whatever is leftover gets distributed to your beneficiaries. Simply handing all your property to your spouse could lower their inheritance after probate. It is helpful to keep your will as specific as possible. If you name a specific sum, your loved ones are more likely to receive the amount you request.
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What are some ways to avoid probate?
A trust is a living financial entity. When you put property into it, that property belongs to the trust. Handing it to your beneficiaries simply requires paperwork. Court intervention is not necessary. You can also create a joint tenancy for your assets. This allows more than one person to have a 100% stake in the property, and one person becomes the sole owner after the other passes. You can also allow your assets to transfer to another person using a P.O.D., “payable on death.” When your financial institution learns of your passing, it contacts your recipient, who can then sign the paperwork and have your assets transferred directly to them. While you are alive, they have no access to this property.
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Who is the executor of your will?
The executor is the person who manages your estate when you pass, carrying out the wishes of the will. First, they handle your bills and debts. Then, they transfer property from the estate to the intended recipients. The court can appoint this person, or you can name them in your will. You may also hire an attorney to perform this function.
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How much authority does a power of attorney possess?
Your power of attorney has only the authority you grant them. You can bar them from your savings or prevent them from making large transactions in your name. If you want them to handle only your day-to-day expenses, you can create this stipulation. Alternatively, you can give them complete control of your finances if you wish.
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What is an estate?Legally, your estate is the sum of all your property. It doesn’t matter if you have modest assets or vast amounts of wealth. Technically, anyone with property to pass
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What is an advanced healthcare directive?
In California, an advanced healthcare directive allows someone to manage your healthcare should you become incapacitated. They can confer with your doctors, approve or deny prescriptions, consent to surgery on your behalf, and so on. You can limit their authority however you wish. For instance, you can prevent them from ending life-support.
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What happens to my property if I don’t have a will?
Without a will, your estate falls into intestate succession. Essentially, your property passes along to your closest living relatives. If you are married without children, your property goes to your spouse. Your spouse may share the property if you do have children, or the children can share it equally if you have no living spouse. Without a spouse or children, assets go to your parent(s). Next in line are siblings, grandparents, aunts and uncles, nieces and nephews, cousins, and so on.
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