OUR
Services
Estate Planning
Most people assume that estate planning is simply preparing for the distribution of their assets after they die – but it is much more than that. A comprehensive estate plan also establishes who will manage your finances and personal care, including making health care decisions on your behalf, should you become incapacitated. And for parents of minor children, estate planning is crucial for ensuring that your children are provided for and protected if you were to die unexpectedly. Thus, estate planning involves more than simply drafting a will—it can also involve financial, tax, medical and business planning. A typical estate plan prepared by Mendoza Mosser Law includes:
A Revocable Living Trust (joint for married couples) that can be revised if your circumstances change;
A Pour Over Will that covers any assets that have not been transferred to the trust and nominates guardianship of minor children;
Durable Powers of Attorney that assigns authority to those you nominate to handle your finances in the event of your incapacity;
An Advanced Health Directive that governs who is authorized to make medical decisions on your behalf if you are incapacitated and dictates your wishes for medical or end of life treatment; and
Assistance with the funding of your trust.
Trust Administration
When a person who has created a trust passes away, the trust must be administered, which is the process of carrying out the specific terms of the trust. If you have been named as the trustee in such a situation, you will need an attorney to assist you with gathering, distributing or overseeing trust assets.
Probate
When a person passes away and they have not created a trust, their estate may need to be administered and distributed by a court through a process called probate. A probate is generally necessary for a person who dies with gross assets in excess of $150,000 that were not automatically transferred upon death through joint ownership or a beneficiary designation form. Even if the decedent had a Will, their estate may still be subject to probate because having a Will in California does not avoid probate, it simply tells the Court where you want your assets to go. Thus, in order to avoid probate, anyone with assets in excess of $150,000 (gross value) should set up a trust.
The probate process is a public proceeding that is lengthy, costly, and open to the public. Because the probate process can be very complex, most cases will require hiring an attorney who can handle the legal procedures. For example, the process involves filing a petition with the court to commence probate, requesting a hearing date, providing notice of the hearing to interested parties, publishing a notice in the local paper, having the court probate examiner review the case, requesting the appointment of a “Personal Representative” or “Executor”, requesting the appointment of guardians for any minor children left behind, locating and gathering assets, preparing an Inventory and Appraisal, working with the Probate Referee, providing formal notice to creditors, preparing a final personal income tax return, determining who will receive property and assets, selling real property, submitting a final estate tax return, providing an accounting to the court, and requesting payment for attorneys fees, executor fees, and any necessary court fees.
The cost of a probate is statutory in nature and set by the California Probate Code. The attorney and executor fees in a probate are based on a percentage of the gross value of the estate. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For an estate larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000. So if the decedent had a property valued at $800,000 (regardless of how much was owed), the statutory fee owed to the attorney and executor would be $19,000 each. There are other fees associated with a probate in California as well: such as the petition filing fee to open the probate, publication fees, probate referee fees, and fees to the court for Certified Copies of Letters Testamentary. Note that the fees to the attorney and executor are calculated on the gross fair market value of the property going through the probate without regard to any debt carried on the property.
In most cases, one can avoid the probate process through proper estate planning during one’s lifetime. If you have a loved one who recently passed away and they did not have a trust, please reach out to schedule a consultation in order to determine if probate is necessary.
The
Process
I understand that many people put off estate planning because it can be a daunting task. That is why I am dedicated to making the process as simple and painless as possible.
I offer a free initial phone consultation to discuss your personal situation and estate planning objectives. Please contact me at (626) 550-4661 or email me at lydia@mendozamosserlaw.com to schedule a consultation.
If we decide to work together, I will send you a questionnaire to complete that we will review at our initial meeting. Don’t worry too much about the questionnaire–it’s just to obtain basic information about you, your family and your estate so that we can discuss your planning objectives. It will also help you to start thinking about who you want to make medical or financial decisions for you if you become incapacitated, who you want to administer your estate if you pass, and who will care for your children. At the initial meeting, I will explain the process in detail and help you consider the various scenarios that might arise in the future and the best way to address them. We will then design a plan tailored for you, after discussing your goals and the various options regarding distribution of your assets. In order to make this experience as easy as possible for you, I am happy to meet with you wherever and whenever is most convenient—including evenings and weekends. We can also schedule a web conference to accommodate your busy schedule.
Following our initial meeting, I will prepare all of your documents and then we will schedule a second meeting to review and sign and the documents. After the documents are signed and notarized, I will discuss the process of “funding” the plan with you. Funding refers to the transfer of assets into the trust. If assets are not transferred into the trust, they must be probated. I will do as much as I can to assist you with the funding process, such as drafting letters to your financial institutions and recording new deeds for any real estate that you own.
After the trust is fully executed and funded, we will plan to review it every few years to see if your circumstances have changed and something needs to be updated.