Frequently Asked Questions
What is Probate?
Probate is the process by which the court system oversees the payments of the decedent’s debts and the distribution of the decedent’s assets.
How much does Probate cost?
The average probate estate will incur probate cost of 4%-10% of the estate’s value. The executor and the probate attorney have minimum fees set by the statute. Court costs and filing fees set are several hundred dollars. Additionally, the Executor and the probate attorney may request additional fees for tasks related to the distribution of the estate.
How long does Probate last?
It is becoming common for probate to last 1-2 years. During this time, assets are not freely accessible, and often beneficiaries must ask special approval to obtain interim distributions.
Does joint ownership avoid Probate?
Not really-it usually just postpones it. With most jointly owned assets, when one owner dies, full ownership transfers to the surviving owner without probate. When the surviving owners die without adding a new joint owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs. When you add a co-owner, you lose control. There could be gift and/or tax problems as well as difficulties in refinancing or selling the property.
Living Trusts Avoid Probate
A living trust is merely a way to hold title to property. Assets that are placed in the trust avoid the probate process and allows your trustee to administer your estate without the cost and delays of probate.
If I put my property in a trust do I lose control over it?
No. You will maintain every right and privilege over your property as you had before the revocable trust was established. You may out property into your trust or take it out of your trust at any time.
Can I change my Trust?
Yes, as long as the trust is a revocable trust, you may make changes to it unless there are restrictions placed by you on the changes.
When I die will my Trust become a public document?
No. A trust is a private document and is not made public at your death. A Will becomes a public document which allows the world to know what your estate is and how it was divided.
What happens if I become mentally incapacitated?
At the time you establish your trust you will select your successor trustees and they will administer your estate for you if you become incapacitated. If you do not have a trust or durable power of attorney, then a conservator of the estate must be appointed for you. This is a legal process and thus may be expensive, time-consuming and stressful.
Do I also need a Will?
Yes. We will prepare a “pour-over will” which is designed to work with your trust. Any assets which you did not put into your trust will be gathered up and “poured-over” into your trust at your death.
What happens if I die without a Will or Trust?
Your entire estate is subject to probate and the state decided who gets your property. The state has a formula of dividing your property which, in many cases, may not be what you would have wanted.
Why should I have Durable Power of Attorney?
There are two durable powers of attorney, one for health care decision and one for property management/financial decisions. By executing durable power of attorney, you will be able to select those people that you would want to make health care decisions and financial decisions when you cannot make them yourself. You can specify what your desires are toward life support and other treatments, as well as make organ donations and direct the disposition of your remains. You will also avoid the difficulties of going to court to determine whether or not you are capable of making health and financial decisions. This is often a costly and awkward situation to place your loved ones in.
Who Qualifies for a Trust?
If you have an estate or personal property worth over $150,000. A trust can save you the costs and time requires by the probate process.
Will an Attorney prepare my trust?
Absolutely. The Attorney’s at Burch, Haddock & Roll are experienced in estate planning. They will confer with you to discuss your estate planning objectives and will prepare the documents that include your trust, a pour-over will, durable power of attorney for financial and advanced health care directives.
BHR Law Group
6440 Oak Canyon, Suite 250
Irvine, CA 92618