Frequently Asked Questions - Elder Law and Probate
What do I need to do if my particular case needs to go to probate court?
– The first step must be taken by the custodian of the will. Within the first 30 days after the death, the custodian must take the original will to the probate court clerk’s office. A copy of the will must also be sent to the executor of the will. (Not taking these steps can be cause for the custodian to be sued.)
– The second step is for the petitioner. This person will be the one that files the Petition for Probate. The case must be filed in the county where the deceased lived. It is very important to speak with a lawyer for this step to make sure everything is handled properly.
– After the case is filed, there are several steps that occur. These steps are:
– A hearing date will be set by a probate clerk.
– If anyone has any rights to anything within the will, they must be informed of the date of the hearing by the petitioner. The petitioner must also include those who are not formally mentioned within the will but might still have a claim to what was left behind by the person who died.
– A notice must be placed in the newspaper by the petitioner.
– Before the hearing, the court probate examiner will need to review the case to make sure that everything was done correctly. They will need to make any corrections that are necessary.
– The judge will then decide who to appoint as the personal representative of the estate. This person will be the executor of the estate.
– The executor of the estate will need to fill out an Inventory and Appraisal regarding all of the assets in question. They will also need to see to valuing any non-monetary assets.
– The executor will need to let any creditors know of the situation through the use of the Notice of Administration to Creditors. They will also handle paying off any debts.
– Those who are responsible will also need to see that a final income tax return is prepared.
– When it comes to determining who will receive any property, the probate court will make those decisions.
– If any real property is sold, A Report of Sale and Petition for Confirming Sale of Real Property will need to be filed with the court.
– If any money is earned, the executor must see to it that a final estate tax return is filed.
– The executor must report to the probate court how the estate has been handled. They will have to make sure that the presiding judge is satisfied with how the estate was handled.
– Once everything is settled and the presiding judge is satisfied that everything was handled properly, the executor is released from their duties and the case is considered closed as far as this process is handled.
What if there was more than $150,000 left behind?
In this set of circumstances, you must go to probate court. You will need to file a Petition for Probate. It is recommended that you speak with a lawyer about this particular step.
What if I was Married to or was the Domestic Partner of the Person Who Died?
To get a court order, you will want a form that is called a Spousal or Domestic Partner Property Petition. This court order will state exactly what your part of the property in question is and which part of your deceased spouse or partner’s property belongs to you. Going this route may save you from going through probate court when it is unnecessary.
What if the amount left behind is less than $150,000?
If the total value of the estate is $150,000 or less, you may not have to go to probate court. There is a simpler process that you can go through instead of going through court. This simpler process includes finding out what the total value of the property is (check the California Probate Code for a full list of what to include and what to leave out). If the total value is $150,000 or less and at least 40 days have passed since the death, you can simply write out an affidavit. You can speak with a knowledgeable lawyer to get this affidavit.
Do I need to go to probate court?
You may not need to go to probate court. Whether or not you need to go to probate court will depend largely upon how much money will be involved, what type of property is involved and who exactly will be trying to claim the property. You should also check on exactly how the property is owned or if there is any existing contract with those who possibly inherit. Knowing whether there are named beneficiaries can make many matters much simpler and can negate the need to go to probate court.
What does probate mean?
Probate is an open court case that deals with three things. These include the process of transferring property from someone who has died to those it is meant to go to, making a decision about whether or not a will is valid and taking care of any existing financial responsibilities of the person who died.
The courts will assign an administrator if a will was not written up. This person will collect all of the assets, pay off any remaining debts or expenses and distribute what remains of the estate to those who have a right to inherit. This will be handled under the supervision of the court system.
How Can The Elder Law Center Help Me With Medi-Cal Planning?
In California, Medicaid funds are administered through a program called Medi-Cal. Medi-Cal will pay 100% of all expenses associated with long-term nursing home care for qualifying clients, but the criteria for qualifying are strict and depend upon proof of financial need. The Elder Law Center may be able to help you or a loved one qualify for Medi-Cal while still protecting your home and other assets.
What is an advanced health care directive?
An advanced health care directive is essentially a power of attorney that pertains specifically to health care decisions.
In California, this document contains two important sections.
- Part 1 allows you to nominate a primary agent and two alternate agents who will make health care decisions for you if and when you no longer have the mental capacity to make those decisions yourself.
- Part 2 specifies the health care instructions that you believe are in your best interests. In order to have legal standing, the document must be signed either in the presence of a notary public or of two witnesses.
What is durable power of attorney?
A durable power of attorney is a legal instrument that allows someone else to manage your assets on your behalf in the event that you become too incapacitate to make asset management decisions on your own. In California, if you would like someone else to make health care decisions on your behalf, you will need to fill out a California Advance Health Care Directive.
What is probate?
Probate is a legal process that commences with a person’s death. First, a court needs to certify that the decedent’s will is a legally binding document. Next, the decedent’s property must be inventoried and appraised, and any outstanding debts – including taxes – must be paid. Once this process is complete, the remaining property may be distributed among the heirs named in the will. The probate process can last anywhere from a few months to a year.
What is a will?
A will is a witnessed document that states your wishes for the distribution of any property that’s in your name after your death. If you have minor children, you can use your will to nominate individuals to act as their guardians. You can also name an executor in your will who will assume the legal responsibility for taking care of financial obligations such as distributing property, or paying estate taxes and other standing debts.
What is a living trust?
A living trust is a legal instrument that contains your instructions for distributing your assets in the event of your death or for managing your assets in the event that you become incapacitated. When you set up a living trust, you are, in effect, transferring ownership of your assets out of your own name and into the name of the trust. As the trustee of the trust, however, you retain the power to make all decisions relevant to your assets, and you can cancel the trust at any time that you wish.
There are many benefits to setting up a living trust:
- Control – With a living trust, you can not only specify which beneficiary gets what part of your estate but also when he or she gets it.
- Avoidance of Probate – Your beneficiaries will be able to inherit your assets without having to go through a probate process in court.
- Avoidance of Conservatorship – If you become incapacitated, the individual you named as your successor will take over as trustee of the trust, and the court will not name a conservator.
- Decreased Estate Tax Liability – A living trust can help minimize your liability with regard to estate taxes, gift taxes and even income taxes.
- Privacy – Since a living trust is not a matter of public record, no one but your beneficiaries has a legal right to know what assets are contained in the trust.
What is estate planning?
Everything that belongs to you comprises your estate. Your estate includes your home and any other property you may own, your motor vehicles, your stock portfolio, your bank accounts, your furniture, your jewelry, your art, your personal possessions, your intellectual copyrights and all your other assets.
Estate planning is a strategy that helps ensure the transfer of these assets before your death or upon your death in a way that benefits both you and your heirs as much as possible. It is an emotionally difficult topic to approach, and yet, if it’s not approached, decisions about the disposition of assets could be made that would not be the decisions you would make yourself. Under California law, if you die without a will, your assets must be distributed according to an inflexible set of set of rules.
Estate planning, then, exists as a type of protection for those you love. Estate planning can also help protect you by making sure financial resources are available to provide you with a good quality of life if you’re no longer able to care for yourself. In California, if you have not planned for someone to assume responsibility in the event that you become incapacitated, the court will appoint a conservator to make those decisions for you.
The two legal instruments most commonly used in estate planning are wills and trusts. Many different laws exist that affect estate planning directly and indirectly. These laws regulate the effects that things like wills, trusts, government programs such as Social Security and Medicare, and insurance will have on your estate. An experienced elder care lawyer can help you navigate this complex legal web so that the outcome is advantageous to your beneficiaries and to you.
Before you speak with an elder care attorney about estate planning, there are some things you should think about:
- The monetary value of your estate
- The individuals or organizations that you want to designate as your beneficiaries
- The timeline for transferring your assets
- Who you might trust to manage your estate in the event that you become incapacitated
- Who you might trust to make health and welfare decisions on your behalf in the event that you become incapacitated
What makes The California Elder Law Center different?
Sandra Diaz and The California Elder Law Center PC are renowned throughout southern California as the area’s leading elder law attorneys. They helm a staff of attorneys who are committed to helping clients make the most out of their golden years. Our attorneys can assist you in putting protections in place that will help ensure the decisions you make about your property and your health are carried out.
As part of our advocacy role at both the local and the state levels, The California Elder Law Center PC makes a point of participating in media outreach that addresses issues that confront the aging population.
What is the difference between elder law attorney and an estate planning attorney?
Estate planning can be seen as a subset of elder law. Estate planning focuses specifically on the preservation of assets through the drafting of wills, the establishment of trusts, the implementation of strategies designed to protect assets from estate taxes and other types of financial planning.
Elder law concentrates on these matters, too, but elder law also deals with all the other broad issues that aging Americans face such as health care directives, the management of government benefits like Medi-Cal and planning for long-term care. Where estate attorneys focus on helping you make sure the disposition of your money and property takes place according to your wishes, elder law attorneys focus on helping you make sure all parts of your life proceed according to your wishes, particularly if or when you’re no longer able to make important decisions for yourself.
What is an elder law attorney?
An elder law attorney is a lawyer who specializes in the types of legal concerns most likely to be faced by individuals who are 65 years of age or older.
According to 2010 census figures, an estimated 40.3 million Americans (13 percent of the population) are over the age of 65. By 2050, this figure is expected to more than double to 89 million Americans. The rapid graying of America underscores a pressing need for legal professionals who focus on aging-related issues.
The 65-years-of-age cutoff is an arbitrary figure to some extent. Yet, it’s true that people who are closer to the end of their lives deal with specific issues that younger people typically need not confront or, at least, need not confront with quite as much urgency. These issues include:
- Estate planning and wills
- Retirement planning
- End-of-life planning
- Government benefits such as Social Security, Medicare, and Medicaid
- Powers of attorney
- Medical care directives
- Consumer protections
Acknowledging the existence of these issues can sometimes be uncomfortable. If these issues are sidestepped or ignored, however, the consequences could have a profound effect on your independence, your financial security and the quality of your life. Important decisions will be left to others who may not have the same ideas about what constitutes your best interests as you do or as the people who love you do. That’s why it’s important to safeguard your right to make important decisions for yourself by planning ahead with the assistance of an experienced elder law attorney.