The Ziskin Law Corp
The death of a loved one is never easy.
And, dealing with the legal and bureaucratic complexities resulting from such death, and the need to properly transfer his or her property, only makes the death more difficult.
Fortunately, you do not need to face these complexities alone. An experienced attorney can guide you through these issues so that the decedent's representatives can fulfill their legal responsibilities and minimize their risk of liability to other beneficiaries and/or the government.
Generically, we refer to this kind of work as "Decedent Administration." The extent and nature of Decedent Administration depends on how your loved one held his or her assets.
Caring, Personalized Help with Probates and Trust Administration
We have been privileged to help many families deal with Decedent Administration. We bring the same level of caring to this process as we apply in planning estates for our clients. We also strive to make the process as efficient and painless as possible so that it does not add to the trauma faced by the decedent's family. We CARE about our clients, and help them understand their options and responsibilities after a loved one passes away.
We will also work with you so that you can do as much, or as little, of the work involved in the administration as you want and are capable of handling. While some tasks really need legal representation, others can, at your option, be handled by your lawyer, one of our experienced paralegals or even by you (alone, or with a little guidance).
First Steps after the Death of a Loved One
While every situation is a little different, the following are some of the first steps you should take with regard to the loved one's estate after he or she has passed:
1. Take care of yourself and other family members.
2. Locate and secure important papers such as the loved one's will, living trust, life insurance policies, bank or brokerage account statements.
3. Consult with competent legal counsel to determine who can act for the decedent and what steps need to be taken. I will meet with you in person for a free consultation to get you started in understanding the your responsibilities and to help you determine what steps need to be taken by the decedent's Trustees or executor in order to properly administer the estate and comply with legal requirements.
As you must understand, we have not tried to list all of the formal requirements, many of which vary depending on the kind, amount and form of ownership of the deceased's assets. We believe that you should start by having a lawyer help you determine the scope of work required. You can then decide whether to retain counsel to help you, or to try to do it yourself. For deceaseds where most of the property is in a living trust, we can also provide a low-cost Trustee Manual that will give general guidance to successor trustees, although it might not totally substitute for good legal advice.
Assets Held Directly by the Decedent without a Beneficiary Designation
Assets held by the decedent directly, without a trust and without a formal beneficiary designation, will normally need to pass through Probate Court before they are transferred to the decedent's loved ones. This is true even if the decedent had a valid will.
Most of the time these assets require Probate Administration. Without being too tongue in cheek, we think Probate is much like:
A lawsuit you file against yourself after you die, that you pay for with your own money, for the purpose of giving your property away and satisfying your creditors and disgruntled heirs
Unfortunately, Probate is expensive, time consuming and difficult for your heirs. Probate fees are calculated based on grow values of assets, without deducting debts. So, if you have a $1 million house, subject to a $700,000 mortgage, probate fees will be calculated on the full $1 million, rather than on the lesser $300,000 of equity. Statutory Probate fees on a $1 million estate total 46,000, plus costs (generally, at least around $1,000), plus fees for "extraordinary" services. Avoiding the cost, hassle and delay of Probate is one of the reasons some many Californians hold property through their living trust or other trusts.
While we can work with you to help make the Probate process more bearable, we also look for ways to help clients avoid Probate, even for assets that may have been left out of clients' trusts, or removed and then inadvertently not put back into such trusts.
If all of the assets otherwise subject to Probate have a value of less than $150,000, we can help you transfer them without Probate. We can do the same for certain assets held with a surviving spouse even if valued over $150,000. Both of these involve some formal documentation, but it is a not less expensive and less troublesome than going through Probate.
Finally, even if substantial assets were not transferred into the living trust during the decedent's life (or some assets were withdrawn from the trust and then not put back, as often happens when property is refinanced), there is a court procedure (a "Heggstad Petition") that can often to put them into the living trust. While the procedure does not come free, and takes a while, it is usually less expensive than a formal probate. If you face this situation, give us a call and we can help you decide whether this procedure is worth pursuing.
Assets Held in Trust
Most decedents in California with substantial assets hold the bulk of their property in a living trust. Doing so gives them the ability to avoid probate (see below), to pass assets efficiently to their heirs, and to use trust terms to protect the inheritance for such heirs from claims by creditors (including potential ex-spouses) [Living Trusts offer many other benefits as well, but, since we want to keep this section simple, we will not try to elucidate all of them here.]
Even if all assets are in trust, there remain a number of formalities that must be observed by the Trustee(s) in administering the trust. While it is possible that many of them can be accomplished without involving legal counsel, most Trustees will benefit from, or need, the help of legal counsel. Such help will normally cost a small fraction of what a Probate would have cost.
Assets with a Beneficiary Designation
The easiest assets to pass are those with a beneficiary designation (such as many IRAs, employee benefit plans, life insurance and pay on death ["POD"] accounts) or which are held in either joint tenancy with right of survivorship or community property with right of survivorship (most community property is not held with right of survivorship).
These assets pass to the beneficiary by operation of law without the involvement of the Probate Court. However, even with these assets there may be formalities which must be followed to perfect title in the beneficiary or joint owner. Furthermore, third parties with whom the decedent had accounts may require you to follow formal procedures before they will give you access to property or assets, even when there is an express beneficiary designation or the property is held with right of survivorship.
Usually, clients need some advice and help with these assets, but it is often minimal. We will gladly help our clients handle these assets themselves where the clients have the time and understanding to do so well. In the alternative, we will guide and advise clients so they can understand how to handle the issues directly. And, for other clients, we (with the assistance of a paralegal for routine tasks in order to reduce the cost for clients) will prepare all the documents needed to deal with these assets, and deal with third parties who may have questions or impose roadblocks.
If you have lost a loved one and want to discuss how to administer his or her trust or estate, call me for a FREE consultation at 818-538-4438, or drop me a line at KenZiskin@gmail.com.