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Orange County Probate and Privacy…There Must be a Better Way

Friday, March 22nd, 2013

Whether you’re famous or not, you may have reasons for wanting your private information to stay—well—private.  Unfortunately, when your estate goes through the probate process in Orange County, there is little to no privacy afforded to you or your loved ones.  Instead, the Orange County probate court, located at the Lamoreaux Justice Center in Orange, will record everything that happens, and it will be available for public scrutiny.

There are certainly good reasons to want more privacy.  For example, if you have a business, it could be detrimental to have certain aspects of it publicized.  You might also be worried about certain individuals attempting to interject themselves into your family’s situation once they realize that there might be something to gain from it.  Along those same lines, it might be better for your heirs for those in their lives not to be privy to their inheritance and other information.

Another concern relates to the privacy of your children.  When you pass away, it will become public knowledge of how much they stand to inherit and when.  Whether it’s $50,000 or $5,000,000, having this information out there in the public eye unnecessarily exposes your children to con-artists and other people who may not have their best interest in mind.

It’s no wonder why one of the main motivating factors that finally gets people into an Orange County estate planning lawyer’s office is the desire to avoid probate. Besides the fact that probate makes all of your personal affairs public, it also has other drawbacks.  It will bring additional expense that will be paid out of the estate and therefore leave less behind for the heirs.  Not only that, but probate in Orange County can be a very drawn-out process that significantly delays the distribution of assets.

Probate Concerns For Celebrities and High-Profile Heirs

While having your private information made public can be an uncomfortable thought for many people, it can be downright damaging for the estates and even heirs of celebrities.  For those whose estates receive royalties, for example, if there is something in the will that can negatively affect public opinion of the celebrity, it can directly cause a drop in sales of their books/movies/music/etc., which will certainly damage the future worth of an inheritance.

A Will Still Requires Probate in Orange County

While creating a will is certainly an important step in estate planning, it does not allow the estate to circumvent the probate process.  It can definitely outline your wishes and help direct the courts in what to do with your assets, but the estate will still have to go through probate.  And, the details of the will likely be available to anyone who wants to see them.  Again, there is little to no privacy in this scenario.

The answer to avoiding probate altogether likely lies in creating one or more specific types of trusts.  They provide considerably more privacy for you and your heirs because they do not have to go through probate and be made public.  A skilled estate planning attorney in Orange County will understand the types of trusts that are available and will help clients determine what kind(s) are most fitting for each individual’s needs.

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Some Commonly Asked Questions from an Orange County Probate Lawyer

Monday, March 5th, 2012

Probate lawyers in Orange County understand that while we’re well-versed in the topic, it is a whole new world to most of our clients.  That means that you likely have lots of questions that you need answered.  Fortunately, answering those questions is exactly what we do!

Do the Orange County Probate Courts Have to Be Involved?

One of the most common questions asked when someone dies without a will is whether or not the courts must be involved.  The short answer to this is “yes” — unless you literally have no assets in your name. The Orange County probate lawyer helps to guide the estate through the process.

The probate court’s job is to ensure that the decedent’s affairs are legally concluded.  This typically means that someone is appointed to be in charge of the estate and follow through with transferring property to heirs as deemed appropriate.  In addition, court fees, estate taxes, creditors, and all other applicable costs will be paid out of the estate.  When this person is named by the courts, he or she is usually either referred to as the personal representative or the administrator.

Who Inherits the Estate?

When an estate goes into probate in Orange County, the proper division of property is determined by the courts.  Each state can have its own laws in regards to how the property is divided, so working with a probate attorney in Southern California, is the best way to ensure you understand what applies in your case.

The most common method of distribution is for property to go to family members.  Most states, after paying the associated fees and other outstanding costs, will award money and property first to a current spouse and children of the decedent.  If this person is unmarried and/or without children, the estate will likely go to parents, with siblings, grandparents, and aunts and uncles falling in line after those.  In cases where no family members are found, the estate can become property of the state.

How Can I Avoid Probate in California?

The best way to avoid probate, of course, is to plan.  An probate lawyer or estate planning attorney in Orange County can help you determine your needs and goals and get you set up with the right documentation to make sure that your wishes are outlined well in advance.  That way, you make the decisions about your estate, instead of leaving it in the hands of the courts.

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Choosing the Right Probate Lawyer in Orange County

Thursday, March 1st, 2012

Probate lawyers in Orange, Los Angeles or San Bernardino Counties are especially knowledgeable in this specific area of law, which means that when you are dealing with an estate that’s going into probate, it makes sense to hire this type of attorney.  The range of tasks that a probate attorney can accomplish will save you a significant amount of time, and he or she will make sure that things are done in accordance with the law.

Two Kinds of Probate Lawyers

Your role in the probate process will determine which kind of probate lawyer you want to hire.  If you need someone who can handle the administration of the estate and help it move through the probate process, then you are most likely looking for a transactional lawyer.  On the other hand, if you are looking for someone to represent you as you make a stand for what you believe should be your rights to the estate, then you would be better suited with a probate litigator.

Keep in mind that many Southern California probate lawyers are skilled in both areas.  You’ll want to ask him or her about specific experience and would be well-served to take a look at the attorney’s track record and what others have to say about their experience working with him or her.

Other Things to Consider When Choosing a Probate Lawyer

Another important consideration may be what other areas of expertise that particular attorney brings to the table.  For example, if the decedent is leaving behind a business, you may want to find a probate lawyer with specific experience in dealing with these types of estates.  If the estate includes a lot of real estate, then you might want a lawyer with a history in property law.

Because the outcome of probate is so important, hiring the right lawyer can make a huge difference.  Take a thoughtful approach and ensure that you are working with someone who truly understands and can represent your needs.

How to Find a Probate Lawyer in Orange, Los Angeles or San Bernardino Counties

There are a number of ways to compile your list of potential probate attorneys:

  • Use your search engine – Try typing in “probate attorney,” Orange County,” and any other specific terms that will help narrow down your choices.
  • Get recommendations – If you know someone who has been through the process, ask them about their experience with their probate lawyer.  Would they recommend him or her?  Why or why not?
  • Contact the California bar association.  They can direct you toward attorneys who are in good standing.

You can pare down your list of probate lawyers by gathering other information.  Look at their web sites and learn about their backgrounds.  How long have they been doing the job, as more experience is generally preferable.  What are their credentials?  What do former clients have to say about them?

And finally, you may want to sit down with a couple of probate lawyers in the Orange County area to get a feel for their personal interaction style and do determine if you think you will work well together.  After all, probate can be a stressful process, and you want someone who can balance the legal aspects and emotional aspects of what you’re going through.

If you would like to get started with the process, we invite you to come meet with a skilled Orange County probate attorney here at Morgan Law Group for a complimentary consultation with the mention of this article.  Simply call (949) 260-1400 to schedule your appointment.

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Working with an Orange County Elder Attorney to Determine Who Will Pay for Your Long-Term Care

Tuesday, February 14th, 2012

A huge misconception about estate planning is that it only helps people plan for taxes and distribute your “stuff” after death.

While planning for death is certainly a key piece of the estate planning puzzle, estate planning also helps you protect your wishes, your assets and your independence during life, too.

This is especially true when it comes to helping you navigate the complicated world of long-term care and making arraignments to pay for it during the golden years.

It’s important to note that long-term care is a very likely scenario for all of us.  People are living longer than ever, but it also means that the period of time in which we cannot fully care for ourselves may be longer, too.

More and more people are finding that they need some form of long-term care to deal with these issues.  In some cases, this can even be handled at home, but even in-home health care options are expensive.

Nursing homes are another common solution when it comes to long-term care, and an attorney can help you plan for this transition.  It’s common for people to think that the government will pay for their nursing home stay or that a nursing home isn’t any more expensive than renting an apartment.  Both ideas are usually untrue.

Instead, there are typically 4 ways to cover the costs associated with long-term care.  Here is a brief rundown of the most common options:

  1. Private Pay – Private pay means that any care that is needed, from nursing homes to prescriptions drugs (including co-payments or full costs) are covered out of pocket.  This is typically not a feasible option for most seniors, as elder care services tend to be very expensive.  It’s not unusual for assisted-living placements to cost upwards of $8,000 a month.  That means that “simple” basics that are required for day-to-day living come out to $96,000 a year.
  2. Medicare – Medicare is a health insurance program administered through the government.  Estate planning and elder attorneys in Orange County work with this program a lot because one of the basic requirements is that you must be over 65 to receive benefits.  Many people are surprised to learn that Medicare does not typically cover long-term care.  So, even if you qualify for this program, it cannot be used to cover nursing home care or in-home healthcare professionals for more than about 100 days.
  3. Medicaid (Medi-Cal) – Medicaid , or Medi-Cal here in California, is used by those with great financial need, and you must apply and qualify for the benefits.  Many people are shocked when their attorney explains that Medicaid is not actually available to everyone, and if you have too many assets (even including a modest home or a few thousand dollars in the bank), you may not qualify at all.  If you are hoping to qualify for Medi-Cal, however, you must prepare several years in advance to protect your assets.
  4. Long-Term Care Insurance – This type of insurance can help to cover or offset the costs associated with long-term care, such as an in-home healthcare workers or nursing home care.  Policies can be somewhat confusing and expensive, so it’s highly recommended to work with an Newport Beach elder attorney when reviewing potential policies to ensure you understand them and are getting what you expect.

There are many issues to take into consideration when planning for your future, and long-term care is undoubtedly one of the most important.  Working with an elder care attorney in Newport Beach means that you will understand the options that are available to you and how they apply according to state and federal law.

If you have questions or need help getting started, please feel free to call our Orange County estate, elder and probate law firm at (949) 260-1400 and ask to schedule a free Family Wealth Planning Session with the mention of this article.  Availability for these sessions is limited to 10 families per month, so call today!

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Which assets do not go through probate in California?

Monday, February 13th, 2012

Probate is a court process in California that facilitates the legal transfer of assets from a deceased person to their named beneficiaries or heirs.  It is often expensive, time consuming and can delay the transfer of assets to loved ones for many months and in some cases, years.

However, the process is necessary to ensure the estate is administered according to the will, or in the absence of a will, according to the California probate code.  The process also helps to ensure that the decedents debts and outstanding obligations are paid to creditors, the state and the IRS.

Fortunately, however, not all assets are subject to the expenses and delays of the probate court following the death of a loved one.  Here is a brief overview of some assets that may avoid oversight from the probate courts:

  • Property held in joint tenancy
  • Other jointly owned assets
  • Assets with named beneficiaries such as insurance policies, IRAs and annuities
  • Assets placed in a living trust
  • Informal trust accounts, also referred to as Totten Trusts or payable on death (POD) accounts
  • Banking and investment products, such as savings, checking accounts, CDs, and brokerage accounts with a Transfer on Death (TOD) beneficiary
  • Your spouse’s share of the community property you own together
  • Small gifts of your personal property

 

Keep in mind that while these assets generally are not subject to probate, there may be instances when they will need to go before the court.  This typically happens when a beneficiary is not properly named or is no longer alive at the time of the deceased’s passing.

The best thing to do if you have questions about which assets may or may not go through the probate court following the death of a loved one is to contact an experienced Orange County probate attorney. Here at Morgan Law Group, we are dedicated to providing individuals and families in Orange, Los Angeles, Riverside and San bernardino Counties with the information and compassionate guidance they need during a time of loss.  To schedule a complimentary appointment at our Newport Beach estates and probate law firm, please call (949) 260-1400.

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Estate and Elder Law Issues: Are Your Elderly Loved One’s Finances Out of Control? How Do You Know?

Wednesday, February 8th, 2012

Orange County estate and elder law attorneys are used to bridging the generations, and we understand many of the nuances that create a disconnect between adult children and their aging parents.  One major issue can be that of finances.  In the older generation, it is still considered fairly taboo to discuss one’s financial situation with others.  It may be thought of us inappropriate or unseemly, or it may invoke worries of looking like a braggart or of letting others know the elderly adult is struggling.

This culture of silence extends to one’s own children.  Elder law attorneys often find that adult children of elderly parents assume that finances are fine because their parents don’t come to them when issues do arise.  It’s not just a matter of pride, but a matter of “this is the way things are.”  By the time financial concerns are uncovered, they can already have devastated the parent and may have even eaten up any potential estate that would have otherwise been passed on to children and grandchildren.

So, how do you know if your parents are struggling financially?  There are some clues to watch for if you don’t feel that Mom and Dad are being upfront about their financial difficulties.

Things to watch for:

  • Calls from creditors.  This can be a big clue that there is an issue.  You may overhear these calls, find them left on the answering machine, or even notice their numbers on your parent’s phone logs or caller ID.  These calls can also come from individual businesses or credit card companies looking for payment.
  • Forgetfulness when it comes to money.  If your parent seems surprised to find no money in his or her wallet, it can be a sign that money is getting overlooked.  Other indicators can be finding uncashed checks around the house.  As parents get older, banking can become more physically difficult and it is easier to become distracted or forgetful when it comes to taking care of financial obligations.  Recognizing this can help prevent major problems before they develop.
  • Unopened mail.  Bank statements, Social Security payments, and other financial documentation that comes in the mail is an important part of keeping finances in order.  If your parent has stacks of unsorted or unopened mail in the house, it may mean that he or she is not taking care of bank accounts or bills.  Also check the mail for signs that Mom or Dad is being taken advantage of by scams that present themselves as “opportunities.”
  • They actually are talking about money.  While many older people don’t want to talk about money as described above, there may come a time when things are getting tight and your parent wants you to notice without him or her coming right out and saying there’s a problem.  If your parent talks more than usual about the rising cost of living or is suddenly unable to do typical activities, such as going out with friends, it may be a sign that there is a financial struggle going on.

An estate planning attorney and probate attorney in Orange County can help your parent stay on track and on target with his or her finances, even setting up systems that can keep things working smoothly should physical or mental decline become an obstacle down the road.  There are a number of issues that pertain specifically to estate and elder law that have been created to help the older generation live comfortably in their golden years.

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Ask an Orange County Probate Attorney: What Are All These Estate Planning Terms?

Tuesday, January 3rd, 2012

Probate attorneys in Orange County work extensively with wills and trusts, as well as in situations where one was never created.  But for the typical citizen, these topics can seem quite mysterious.  When you throw in words like “estate” (only rich people have those, right?) and “probate” (is that when liquor was illegal?), things can get even more confusing.  Here, a probate attorney from Orange County walks you through some of the most common estate planning terms.

Assets

Assets are anything that you have that can be owned or controlled in a way that produces value.  Obviously, money is an asset, but so too are property, vehicles, businesses, stocks and bonds, other investments, personal items, and more.  If it can be converted into cash, it is considered an asset and should be accounted for in your estate plan.  If no will is created, the probate court may end up doing this accounting after your passing.

Beneficiary

A beneficiary is the person who is named to receive inheritance, such as all or part of a life insurance policy or the ownership of assets of a trust.  The word is often used to describe heirs when they have been specifically named.

Estate

An estate is not simply some rambling mansion on acres and acres of land in some exotic locale.  Really, your estate is determined by adding up all of your “assets” and subtracting your “liabilities.”  The difference is your net worth and is what will be passed on to your heirs.

Heirs

An heir is someone who may receive part or all of your estate upon your death.  This term is often used when the probate process is used to designate who will inherit personal items, property, money, etc.

Liabilities

While you would generally consider your home to be an “asset” to be passed on to your “heirs,” it can pose a liability.  These are outstanding bills and debts that need to be cleared up, either before the probate process or with the assistance of a probate attorney.  Some costs will be ongoing throughout the process, such as the mortgage on that home, property taxes, and many other administrative expenses.

Living Will

This document explains your ‘end of life’ wishes should you become somehow incapacitated.  It covers things such as who will be in charge of making medical decisions for you, as well as outlining what decisions you would like to have made.

Probate

When an individual dies without having made clear, legal wishes about his or her “estate,” the courts must step in to determine how best to divide the “assets” and take care of any financial obligations.  This is done through a process called probate during which everything is accounted for and decisions are made based purely on legal precedent.

Trust

There are a number of different types of trusts that can be created as a part of your “estate” plan.  These are used to transfer your property, money, etc. to another person before or after your death.  This may seem redundant when using a “will,” but there are a number of benefits to creating a trust, one of which is that it can save a tremendous amount of money for you and your “heirs.”

Will

Aside from seeing “the reading of the will” on some television drama, many people are still uncertain of what this mysterious document is all about.  Also sometimes called a testament (as in “last will and testament”), a will is a legal document that determines how your “estate” will be managed after your death.  It names an “executor of the estate” and outlines your wishes for “inheritance” and “beneficiaries.”

There is a lot to know about estate planning law, and this quick list will at least familiarize you with some of the most common terms.  If you are currently administering an estate and aren’t sure what to do next, you may benefit from contacting a probate attorney in Orange County.

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An Orange County Probate Lawyer Shares Tips on How to Avoid Probate

Thursday, November 3rd, 2011

Even those who don’t fully understand the probate process are pretty clear about the fact that they want to avoid it. As an Orange County probate lawyer, I see so many cases where probate could have been shortened or avoided altogether, if only people had more information.

Probate is a legal process that takes place when an individual dies. If he or she has a will, probate is a time when the courts check to ensure it is valid so that property can be distributed according to that person’s wishes. During this time, all of the individual’s assets need to be accounted for, and any debts and taxes must be paid before money or property is given to beneficiaries.

Unfortunately, probate can take a very long time. At best, probate in OC is likely to take a few months, although more complex estates can take years. During this process, beneficiaries are unable to access their inheritance, no property can be sold, and lawyers’ fees tend to mount up.

There is some property, however, that is not subject to probate. For example, there are types of accounts, like life insurance, that pay upon the individual’s death. Many people don’t realize that some savings and checking accounts can be designated as payable-on-death. A probate lawyer can help with the details, or you can try talking to your bank to see what you can do about naming beneficiaries and keeping that money out of probate.

Other types of accounts, such as stocks, bonds, and mutual funds, can be set up to transfer upon your death. This strategy can even be used to keep vehicles and real estate out of probate There are specific forms that need to be filled out for each type of account or property, but the process is not terribly complicated. As with the case of payable-on-death bank account, beneficiaries do not have any rights to the money or property in a transfer-on-death situation until the current owner is deceased.

Naming beneficiaries is, in and of itself, a tool for avoiding probate for certain types of accounts. Retirement plans, for example, can skip the probate process when beneficiaries are clearly named. Upon your death, benefits automatically transfer to those beneficiaries. This approach can also be taken with various accounts (savings, checking, mutual funds) and certificates of deposit.

Property that is owned jointly may also avoid the probate process. That means that if a home is owned in both spouses names, it can automatically pass to the surviving spouse. Or you can choose to own property jointly with someone of your choosing to achieve the same goal. However, there can be a whole host of problems associated with this strategy so talk to an attorney before determining if joint tenancy is right for you and/or your loved ones.

A final helpful tool for avoiding the probate process is the living trust. An estate planning attorney may be the best choice for setting up this kind of documentation, but the cost is negligible when compared to the time and expense of probate. In simple terms, you declare a trust that holds your properties. While living, you (and possibly your spouse or other designated people) act as the trustee and are able to control all of the property within it. Beneficiaries are named for the trust, which helps avoid the need for probate, as the property is accounted for and beneficiaries are named, requiring two of the requirements for the process.

Probate can be a hassle, so knowing what you can do to avoid it is to your benefit. Likewise, it works in favor of your beneficiaries, as less of your estate will go to pay for probate lawyers and other legal fees.

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Newport Beach Probate Attorney Encourage You to Embrace The Joy of Life

Thursday, August 11th, 2011

Many of our articles are about planning for death. They focus on making sure that your affairs are in order so that you can enjoy peace of mind. They focus on taking advantage of the element of control, while you have it. No matter how well intentioned our writing is (we do ALWAYS have your best interests at heart), the topic of estate planning strikes some people as inherently morbid. To some degree, that’s just part of planning for death, but in this article we wanted to do something a little different, so we’re going to focus on a few things you can do today to make life more meaningful!

Do Something Unexpected

Today, take the opportunity to do something that unexpectedly impacts someone you love. It can be your spouse, one (or more) of your children, parents, or grandparents. The idea is to get outside the box and be extraordinary. For example, if you normally cook dinner at home, make the extra effort to present the meal by candlelight and make it extra special. Consider making your spouse a card “just because.” Set aside time just to listen and pay attention to her or him in a way that’s unusually attentive. Reminding your spouse that you still believe your commitment to one another is the foundation of your family can really make their day, not to mention yours!

If your children are always hounding you for candy, set up a candy scavenger hunt out of the blue. They’ll talk about it for days! The point is to find a way to express your love on their terms. Of course you feed, clothe, and teach your children. Those are true expressions of love, but what we’re talking about here is expressing your affection on their level and in a way they’ll understand.

Take your mother or father out for a special night on the town. As parents age, they tend to get out less and less. A special night on the town can be a real treat, even if it’s just for dinner or ice cream. Make an effort to listen to them and give them exactly what they want, which is often just an ear—someone to hear their stories. On the surface that seems simple, but communication is complicated. Take the time to figure out what will really make your parents happy on any given day. It’s worth the effort!

Face Fear

We all have fears. We can measure growth and, often times, fulfillment by the frequency with which we expand our comfort zones. Few things deliver feelings of accomplishment more than deliberately facing and overcoming fear. Today, choose one thing that you’ve been putting off for fear, whether it be fear of trying something new, fear of failure, or fear of embarrassment. As far as anyone knows, we only get one shot at life on planet Earth. The only real risk, therefore, is not taking enough risk. Face a fear and whether you overcome it or not, whether you succeed or fail in the endeavor, you’ll always know that you tried. And make sure you try your absolute best. Life is too short to do things any other way.

Take Time for Yourself

Take some time to do something that makes you feel good. That can mean walking through a park to be alone with your thoughts, getting a massage, or going fishing. The point is to do something you find relaxing. Heck, after all the stress associated with facing your fears, don’t you think you deserve it?

Call Us to Schedule an Appointment

No matter how fully you succeed at living a richly rewarding life, we all need to make plans that ensure our loved ones are cared for over the long run. We want to be your partner in that process, so we invite you to call our Newport Beach Estate Planning office today and schedule a Family Wealth Planning Session. Normally, we charge $750 for a Family Wealth Planning Session, but the first two people to call our office and mention this article will receive that session for free (assuming we still have space in August . . . it’s filling up fast!).

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Orange County Probate Lawyer Weighs in on Whether to Add Your Child to Your Bank Accounts to Avoid Probate

Thursday, July 28th, 2011

Individuals engaged in estate planning often get panicky when they hear the word “probate.”  When the term hasn’t been fully explained by a probate lawyer (and sometimes even when it has), it conjures visions of long waits, loss of inheritance, and many other hassles for heirs of an estate.

To calm these fears (and to avoid working with an attorney), many people consider the idea of adding one or more of their children to their bank accounts.  Generally speaking, each “joint tenant” of an account has complete access to the money, but when one dies, the entire amount becomes the property of the other joint tenant(s).

This may seem like a logical way to directly transfer money to heirs without going through the probate process, but a skilled probate attorney in Orange County needs to keep clients informed of potential pitfalls of this approach:

  • As it has already been mentioned, all joint tenants have access to the funds in the account.  This means that either party can withdraw money at any time.  If the child added to the account is not entirely trustworthy, this can be a devastating reality when the money is used inappropriately.
  • In a case where the parent passes away, any money received by the child can be considered a gift, which means that it is subject to a variety of laws and may be taxed.  An Orange County estate tax attorney will be able to keep you up-to-date on current laws and regulations in our area.
  • Creditors for both parties can have access to this account.  That means that if one joint tenant dies (even the one who is not in debt), the other’s creditors can go after the money they jointly held.  Keep in mind that this means that if the child has had credit problems, those creditors may have access to the parent’s money.
  • Money left in the event of the parent’s death will only be accessible to the other named tenant(s).  If one child has been responsible for the majority of a parent’s elder care and therefore is on the account, he or she will likely have no legal responsibility to share those funds with other siblings.  Again, trustworthiness is an important issue.

If you are considering adding a loved one to a bank account as a means to avoid probate, it’s important to at least talk to an Orange County probate attorney about your options. You may find that simply giving your loved one power of attorney over the account or holding your assets in trust may be more preferable based on your circumstances.

To get the information you need, please feel to give our Orange County probate law firm a call at (949) 260-1400 and ask if you qualify for a free Family Wealth Planning Session ($750). During this comprehensive session, we can help you determine the best methods for protecting your assets if death or disability should occur. However, these sessions are limited to 10 per month so call today!

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