The following information includes frequently asked estate planning questions.  The answers stated are general in nature and are not intended to apply to every situation.  Each case is different and carries its own set of circumstances which must be taken into consideration.

1. What is Probate?

Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs, and requires the filing of particularized and complicated legal forms.  The costs of probate is regulated by law and depends upon the size of an estate.  Attorney fees to probate an estate worth $500,000 are generally $13,000, and may be more depending on the circumstances; a Personal Representative may collect this much as well.

2. How is a Will Probated?

The following is a simplified outline of the general probate process:

• The original Will is deposited with the Court.


• The Executor named in the Will (or Administrator) is appointed.  Executors and Administrators are commonly referred to as Personal Representatives.


• The Personal Representative files a Petition for Probate of the Estate.


• For approximately four months from the date of the Petition for Probate, creditors of the Estate can file claims against the Estate.  This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.


• During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition.  This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.


• When the four‑month claims period has expired, and when all assets have been collected, real property sold, and, assuming no problems have presented themselves (such as the Will being contested), the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.


• If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

3. Are there different types of Wills?

There are many types of Wills.

4. Who should make an Estate Plan?

Every adult person should consider creating an Estate Plan or at least a Will.  Each year a large number of people die without Wills or Trusts, leaving major decisions in the hands of the state.  Estate Planning is especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be determined.

5. What is a Trust?

Trusts are the process by which a person (the grantor) transfers legal ownership to a person or institution (called the trustee) to manage the property for the benefit of another person (called the beneficiary).

Trusts create a fiduciary relationship between the trustee and the beneficiary.  The trustee must act solely in the best interests of the beneficiary when dealing with the trust property.  If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to his or her interests.  The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property. A grantor may also name him‑ or herself as one of the beneficiaries of the trust.

6. What about Health Care Provisions and Powers of Attorney?

California extends the delegation of decision‑making power to cover health care issues, including the withholding or withdrawal of life support treatment, by means of a Power of Attorney for health care.  Through this Power of Attorney, you have the right to designate an agent who can make treatment decisions for you in instances where no communication is possible because of your.

In addition to health care considerations, it is also important to have a Power of Attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle his or her incompetent spouse's salary checks and social security benefits, as well as to make other legal and financial decisions.

7. What are Estate (Death) Taxes?

Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate minus allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following:

• Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs;


• The value of certain annuities payable to your estate or your heirs;


• The value of certain property you transferred within three years before your death;


• Trusts or other interests established by you or others in which you have certain powers.

Allowable deductions used in determining your taxable estate include:

• Funeral expenses paid out of your estate;


• Debts you owed at the time of death;


• The marital deduction: generally, the value of the property that passes from your estate to your surviving spouse.