Ask The Attorney: Estate Planning

Here are the answers to some questions we often receive about estate planning and probate at The Sexton Law Firm. To talk to a lawyer about your own estate plan, we invite you to schedule a free consultation at our Chula Vista or Oceanside office.

What happens if you die without a will?

The probate court decides who will administer your estate and who will become guardian of your minor children. The state of California makes a will for you and decides who gets your money and your belongings. Some possible problems with leaving no will include:

  • The wrong person is selected by the court to administer your estate.
  • An inappropriate guardian is selected by the court.
  • Children only receive their share when they become "adults," at age 18.
  • Beneficiaries are not those you wanted.

What are the benefits of a living trust?

A living trust avoids probate, thereby avoiding delay and expense. A living trust avoids the need for conservatorship if you should become incompetent or incapacitated and also may provide tax savings. A living trust can continue for the benefit of your loved ones, including minor children, elderly dependant parents and adult children with drug or alcohol problems or mental, physical or educational special needs.

If I have a trust, do I also need a will?

Yes, for several reasons:

  • If you want to leave specific items (such as jewelry or furniture) to certain individuals.
  • As a safety net to pour assets into your trust in case you have forgotten to put something into it.
  • To provide for the care of your minor children or other dependants.

If I have a trust, do I also need a power of attorney for finances?

Yes. Financial powers of attorney are extremely important if you have only a will. With a living trust, a special financial power of attorney allows your agent to transfer assets to the trust, sign income tax returns and deal with Social Security, pensions, IRAs, insurance and other legal documents outside the trust where your signature is required.

What if I become incapacitated and can't make a decision regarding my health care?

You need a special document known alternatively as a durable power of attorney for health care or an advance health care directive. This document is invaluable in the event you become incapacitated for whatever reason, since it allows you to designate who will make health care decisions for you if you are unable to make them for yourself. Without such a document, you may be required to go through an expensive, time-consuming and public conservatorship proceeding before anyone will be allowed to make such decisions for you.

Health care powers of attorney should contain correct addresses and telephone numbers of your named agents, and should typically have an unlimited duration.

How much will probate cost?

First of all, probate can be avoided with proper planning and document preparation. All of the time and expense associated with probate can be avoided. If you do not plan for the future of your estate and the assets are more than $100,000, the state courts will be involved in the probate process.

Fees are dependent on the gross value of the estate's assets (see below chart). While the assets are considered in the fees, the amount that you owe is not. For example: Let's say the gross value on your home is $250,000. Your mortgage however is $275,000. The gross asset value used to determine your probate fees is still $250,000 because what is outstanding on the mortgage is not considered. The following chart outlines the minimum fees established by the state of California for probate cases. They are tied to the gross asset value of an estate and do not include any special fees that may be accrued, like those for tax preparation, the sale of assets, and litigation.

Gross Asset Value
of Entire Estate
Minimum Probate Fees
WITHOUT
Proper Estate Planning
Probate Fees
WITH
Proper Estate Planning
$400,000$22,000*$0
$500,000$26,000*$0
$750,000$36,000*$0
$1,000,000$46,000*$0
$2,000,000$66,000*$0
$3,000,000$86,000*$0
$4,000,000$106,000*$0