Archive of Published Articles

Living Trust Savings Article:  Answers to Commonly Asked Questions Regarding the Law

  • How much do I really save by having a Living Trust?

In the absence of a living trust or property transferred by joint tenancy, if your estate is worth $150,000 or more (to include the fair market value of your home, not just the equity in the home), a probate case is required to transfer your assets.

  • How much does a Probate Case Cost?

Those fees, on average (not counting additional fees due for sale of real property, challenges to a Will or the like) are approximately $26,000 for an estate with a gross value of $500,000; $36,000 for an estate with $750,000 in assets; $46,000 for an estate with a gross value of $1 million and approximately $56,000 for a gross estate value of $1.5 million.  It is not uncommon for heirs to have to sell property simply to raise enough money to pay for the cost of inheriting property!

By contrast, a properly prepared and funded living trust avoids the process of probate and provides for a prompt, informal, out of court alternative to the probate process.

Furthermore, the process of probate, while it can be completed in as “little” as 18 months, most commonly now takes at least 22-26 months and sometimes longer to complete.

Another key benefit to a living trust is avoiding further court proceedings (a Conservatorship) in the event of your incapacity – another lengthy, expensive legal process.

The information contained herein is general information about the law only.  The law is subject to change.  If you have a specific legal question and want your question(s) answered, consult with an experienced attorney.


Legal Issues for Senior Citizens Article: Answers to Commonly Asked Questions Regarding the Law.

With over 7 million residents in the State of California at least 60 years of age, California is the most senior-populated state in the nation. Seniors share many of the same concerns regarding estate planning, government assistance for healthcare and housing needs, and retirement planning.  Those issues include:

  • What is the difference between Medicare and Medi-Cal?

Medicare is a Federal health insurance program that primarily covers Social Security recipients at least 65 years of age or certain disabled individuals.  In short, Medicare has two parts (Part A, usually referred to as hospital insurance and Part B, a so called supplemental health insurance program). Medi-Cal, on the other hand, is a program run by the State of California providing health insurance based on need. If you are 65 years of age and have limited resources and income, you may qualify for Medi-Cal assistance. Medi-Cal covers typical medical and dental expenses. Medi-Cal frequently pays for nursing home benefits, though it does not cover board-and-care homes (usually converted private homes with up to 8 elderly residents). Often a Senior Citizen qualifies for Medi-Cal assistance when their savings/liquid assets have been exhausted and the monies paid by Medi-Cal are repaid from property they own after their death.

  • How can I be Prepared in case I Become Incapacitated?

The important legal documents to consider are an Advance Healthcare Directive, and a Power of Attorney. The Healthcare Directive includes your designation of a first (and preferably one or two alternate) healthcare agents in the event you become unable to make your own healthcare decisions. That document also leaves your agent with detailed instructions about your choices regarding the use of life-support equipment, organ donations upon your death, and the like. A Power of Attorney is a powerful legal document that gives another person the right and authority to act on your behalf – either outright (effective when you sign the document) or when you become incapacitated as documented by two doctors (usually referred to as a “Springing Power of Attorney”).

The information contained herein is general information about the law only. The law is subject to change. If you have a specific legal question and want your question(s) answered, consult with an experienced attorney.

Inheritance and Probate Topics Article: Answers to Commonly Asked Questions Regarding the Law.

  • Will my beneficiaries’ inheritance be taxed?

That depends – the portion of your estate left to your spouse or a charity is usually not subject to estate tax at all. Under present law the portion of your estate left to anyone else, including your children and grandchildren, will be taxed only if your assets are worth $11,580,000 or more for a decedent who dies in 2020 (twice that for a married couple with a properly prepared trust). That figure is adjusted annually (for a cost of living determined by the government.  The law establishing that figure “sunsets”/reverts to $5 million in 2026 in the absence of action by Congress and the President.

  • Is a probate avoided upon my death as long as I have a Will?

Unless your property is held in joint tenancy with another person, this presumption is untrue. A probate proceeding is required whether you have a Will or not and is typically only avoided by the preparation of a Living Trust.

  • Is it possible to minimize or eliminate my inheritance tax by simply gifting away assets prior to my death?

While it is technically possible to minimize or even eliminate estate tax obligations by gifting assets, be aware that any gifts in excess of $15,000 per recipient/per donor/per year, are subject to a gift tax and, as a practical matter, are recaptured/placed back into your estate for estate tax purposes.

  • Are the only real beneficiaries of a Living Trust the children/beneficiaries after a death occurs?

This common presumption omits discussion of a significant lifetime benefit provided by a properly drafted Living Trust – the opportunity to make sure that your affairs are not managed, in the event of your incapacity, through a Court supervised process known as a Conservatorship. Provisions to provide for your care if you become incapacitated, by individuals you select (without Court supervision) should be included in your Living Trust Estate Plan.

  • Are the costs of a Court probate proceeding usually worth it?

Most of my clients are surprised to find that probate fees are fixed by law and subject to Court approval and, further that they are fixed as a percentage of the appraised value of assets in your estate. If you, like most residents of Southern California, have an estate which has significantly increased in value due to the appreciation of property you own, then probate attorney’s fees upon your death, in the absence of a properly prepared Living Trust Estate Plan, will be significantly greater than they were just several years ago as the assets in your estate have increased significantly in value.

  • What documents other than a living trust are usually included in a comprehensive estate plan?

Legal documents usually included in a comprehensive Estate Plan include:

– A Living Trust to avoid probate on your death and to avoid a court conservatorship in the event of your incapacity;

– A Last Will and Testament containing a provision to “pour over” any assets left out of your trust into the trust;

– An Advance Healthcare Directive;

– A Durable Power of Attorney or Springing Power of Attorney;

– An Assignment of your personal property assets to your trust;

– A summary or “Certification” of Trust; and

– A Deed to transfer any real property owned by you (including house, condo, undeveloped land and timeshares).

  • Doesn’t a living trust only benefit my children/heirs as it avoids probate after I have died?

While it is true that the primary economic/cost saving benefit of a Living Trust is avoiding the Court Probate process and the expenses (approximately 6% – 10% of everything you own) most people are unaware of the significant lifetime benefit that a Living Trust provides – provisions to avoid a Court conservatorship in the event you are incapacitated. If you suffer a stroke or are incapacitated by Alzheimer’s, dementia, etc. in the absence of a Living Trust, Court proceedings separate and apart from a probate proceeding are required. That process, known as a conservatorship is also time consuming and very expensive. A Living Trust provides you with the opportunity to designate a spouse, child or other third party to act as your “Successor Trustee” and handle all of your affairs without the necessity of the legal process known as conservatorship. Examinations to apprise the Court of whether you are incompetent or not, Court hearings to determine who should be appointed your representative and continuing obligations to account to the Court for the handling of your financial affairs can all be avoided by a properly prepared Living Trust.

The information contained herein is general information about the law only.  The law is subject to change.  If you have a specific legal question and want your question(s) answered, consult with an experienced attorney.

Healthcare Power of Attorney and Life-sustaining care Topics Article

  • What are my options under California Law in regards to life-sustaining care?

California Probate Code Section 4701, enacted in 1999, sets forth suggested, though not mandatory language you are permitted to include in an Advance Healthcare Directive Form (a form that is usually prepared in conjunction with a Will and/or Living Trust by your attorney).  In regards to the subject of “end-of-life decisions” that form provides with you with the option of instructing your designated healthcare agent, when you are unable to make decisions yourself, not to prolong your life if (1) you have an incurable and irreversible condition that will result in your death within a relatively short time, (2), you have become unconscious and, to a reasonable degree of medical certainty, you will not regain consciousness, and/or (3) the likely risks and burdens of treatment would outweigh the expected benefits of such treatment. The first two circumstances are rather objective while the third choice leaves much more discretion with your healthcare agent to determine when providing you with such care it is deemed to be extraordinary/not something you would desire. In the alternative you are permitted to designate your agent to prolong as long as possible within the limits of generally accepted healthcare standards. I have found, in almost 40 years of practicing law that an overwhelming majority of clients execute such a form indicating that they do not want their life prolonged in at least the first two instances and most also agree to allow their agent to make the decision as to whether the risks and burdens of placing them on such life support treatment would outweigh the benefits of doing so.

  • How do I designate someone to make emergency healthcare decisions for me when I am unable to do so?

Execution of a new “Advance Healthcare Directive” provides you with the opportunity to    designate a healthcare agent and an alternate healthcare agent to make emergency healthcare decisions for you when you are unable to do so. You have the option of including in that document a “personal care power of attorney” provision to provide for control over practical, day-to-day care decisions involving your living arrangements, transportation, entertainment, etc. (when you are no longer able to handle those decisions). As set forth above, that form also provides optional provisions permitting you to determine in which situations you may wish to withhold life-sustaining care (typically a respirator / breathing machine or feeding tube), make organ donations, and handle post-death decisions such as your funeral arrangements and the disposition of your remains.

  • Is my existing “Health care power of attorney/durable power of attorney for healthcare” executed before 2000 still effective?

If the document was executed prior to 1992, California law provided that it expired after seven (7) years. Most forms executed thereafter were not required to obtain a mandatory expiration clause and are still effective, though they do not include nearly as many directives as the new form enacted in the year 2000.
The information contained herein is general information about the law only. The law is subject to change.  If you have a specific legal question and want your question(s) answered, consult with an experienced attorney.