Law Offices of Debra Popineau
Information about Wills and Probate
When should you have a will?
- If you have any property that you want to go to those
you choose
- Property includes cash,
real estate, CDs, stocks, household possessions,
jewelry, cars, boats and pets.
- If you do not have a will, you have not
documented legally to whom your property should
go. If you want your property to pass other
than through intestate succession, you need a
will. Intestate succession means
that the state (in our case, California)
designates to whom your property will pass.
But your property may not be passed according to
how you might think.
- If you have property that can’t be held with
a beneficiary designation, you need a will.
For example, you can designate a beneficiary in
your bank accounts, so that if you pass away the
beneficiary immediately owns the account, and the
account does not need to go through a will or
other official proceedings. Most other
forms of property cannot be so designated.
- If you are in a “blended” family (where
you and your spouse each have your own children),
your property may not pass the way you expect it
to and your children may be excluded from
receiving it after you and then your spouse pass
away.
- If you have children under 18
- If you have minor children (under age 18), you
need to name guardians in a will. Otherwise
the state will decide who will care for your
children -- and it may not be whom you would
choose.
What you need to create a will
- You must be over age 18 and of sound mind and under no
undue influence.
- Statutory requirements must be followed or you may have
an invalid will.
- Property can be passed on in many ways to others -- by
naming individual items, by amount (for cash and
equivalents), or by percentages. Think about what
kinds of property you have, the people or institutions
you want to leave things to, and the relative amounts you
would like each to receive. These wishes must be
carefully documented in your will.
When does a will need to be
updated?
- If you are married, be advised that your spouse can take
against your will if it predates the marriage. Your
will needs updating.
- If you have a child born after a will is created, that
child can take against your will. That will needs
updating.
What about do-it-yourself software and
forms?
Provided you understand the questions and the centuries of
legal cases and statutes that stand behind the forms, you can do
a do-it-yourself will.
Chances are that if your situation is the least bit complex,
the will or trust will be invalid under California law. If
your will is declared invalid, none of the documents you prepared
will be carried out: the rules of intestate succession will
then apply, or an earlier will may apply. Self-prepared
wills are more likely to be challenged in court by relatives than
professionally-prepared wills.
What is probate?
Probate is the legal process whereby the State of California
gives an adult the right to collect your assets (after your
death), pay your debts and then disburse your property.
When is probate required?
- If your estate is worth more than $100,000 (total gross
value of all your property).
- When a decedent’s (the deceased
person’s) estate is worth more than $100,000
(gross value), it must be probated. Estates
worth less than $100,000 may be passed through a
combination of short-form probate petitions or
affidavits under Probate Code Sections 13100 et
seq.
- Many kinds of property can be passed outside of a probate
proceeding. Some ways to do this are:
- joint tenancy ownership
- beneficiary statements
- certain types of trustee accounts
- pay-on-death accounts
- There are income, estate and real property tax
consequences of each of these forms of ownership.
How much does probate cost my
estate?
- Probate fees are based on a percentage of the gross
estate value (meaning loans and mortgages are not
deducted out), with decreasing marginal rates for larger
estates.
- The table gives fees for various estate values.
- To the table below, add a minimum of $500 for court
costs.
Probate Fees in
California
| Gross Estate |
Attorney Fees |
Executor Fees |
Total Fees |
| $100,000 |
$3,150 |
$3,150 |
$6,300 |
| 200,000 |
5,150 |
5,150 |
10,300 |
| 300,000 |
7,150 |
7,150 |
14,300 |
| 400,000 |
9,150 |
9,150 |
18,300 |
| 500,000 |
11,150 |
11,150 |
22,300 |
| 600,000 |
13,150 |
13,150 |
26,300 |
| 700,000 |
15,150 |
15,150 |
30,300 |
| 800,000 |
17,150 |
17,150 |
34,300 |
| 900,000 |
19,150 |
19,150 |
38,300 |
| 1,000,000 |
21,150 |
21,150 |
42,300 |
| 1,500,000 |
26,150 |
26,150 |
52,300 |
| 2,000,000 |
31,150 |
31,150 |
62,300 |
- Examples of how the fees are calculated for the attorney
or the executor:
| Marginal Percentage |
$200,000 Estate |
$1,500,000 Estate |
| 4% of first $15,000 |
$600 |
$600 |
| 3% of next $85,000 |
2,550 |
2,550 |
| 2% of next $900,000 |
2,000 |
18,000 |
| 1% of remainder |
0 |
5,000 |
| Total Probate Fees |
$5,150 |
$26,150 |
How can living trusts help avoid
probate?
If you have created and titled your property in the name of a
living trust, you have set up an entity whose existence extends
past your lifetime and whose successor trustees (chosen by you)
can do the same things a probate personal representative would
do: collect your assets, pay your debts and distribute your
property.
A living trust is also a perfect vehicle for holding property
in trust for your minor children or for beneficiaries who have
special needs (e.g., a medical or other problem that requires
that funds be distributed out over a period of time instead of in
a lump sum).
The cost to set up a living trust is almost always a fraction
of potential probate fees. For more information, see
the page on Living Trusts.
Our Services
We can help you evaluate whether you need a will or a trust, a
minor’s trust, a special needs trust, an insurance trust, a
charitable gifting plan, or other estate planning
documents. We do our best to stay in contact with our
clients to let them know about changes in the law, so they can
keep their estate plan up-to-date.
For more information or an appointment, please contact us at
(760) 242-6527, or send us an
e-mail message.
Disclaimer
This Web site contains only general information about the
topics covered. None of the above should be construed as
legal advice, and should not be used to prepare or execute legal
documents.
Back to home page of Law Offices of Debra
Popineau
Created by BBaker | Last update September 02, 1998