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Probate Horror Stories- Why You Still Need a
BY: John B. Palley, Attorney at Law
The latest buzz amongst seminar givers, article writers and
cocktail party know-it-alls, related to estate planning, is why you do not need a living trust. Or at least that is how
many people hear it! With the tax changes of 2013 each of us can now give away up to $5million when we die without tax.
Congress and the President called it a "permanent" change but by mid-April we are already talking about lowering
the exemption. Though our house prices have gone up substantially, or we may have hit a homerun with a certain dot com
stock, not too many of us will have $5million to give away when we die. The mistake that many people make is that
they do not need a living trust, or even want to revoke the one they have, because they "only" have $400,000 in assets.
This is a big mistake because the federal estate tax exemption has absolutely nothing to do with the California probate laws!
I encourage you to talk to a qualified estate planning attorney before you decide if you really do not need that living trust!
I write this article as an attorney with a substantial amount of
experience writing trusts, administering trusts after death and helping families through probate Court when their loved
ones did not have a trust. Helping family members administer a trust after death is substantially easier and less costly
than going through the Probate Court. A trip to the probate Court is generally required after death, in California, if
total assets exceed $150,000.
Do you know what the financial cost of "going through probate" is? A $400,000
estate would generate a $11,000 attorneys fee, about $1,200 in Court costs and a $11,000
Executors fee. Yes, almost $25,000 to collect, divide and distribute your estate
after you die! As the fees and costs are based on a percentage of the total assets these
numbers go up as the size of your estate goes up! Interestingly the total estate size is
based on the gross value of your assets and not the net and thus a house with a huge
mortgage is valued at the fair market value and not the smaller net equity value! As a
probate attorney I can assure you I love the attorney fee structures of probates!
Do you know how long a probate takes? Assuming we are able to meet every deadline, to
the day, a probate can be completed in 7 months in most counties in California. However,
any little hiccup and your probate will take 8, 9, 10 months
and in rare cases a
year or two! I am working on one probate right now where the husband died in 1996 and we
are still not quite finished with the probate for a variety of reasons! The probate
attorney can help move things along but the Executor can stall things in a major way!
Yes, the fees and time delay of a standard probate are great. However, do you know what
happens if you own real estate in another state. Most people claim they do not own real
estate in another state but how many of you own a timeshare in Hawaii, a cabin in Tahoe or
oil rights in Oklahoma? I encounter clients all the time with one of these
"assets." They are often not worth a lot but if not properly included in a trust
it is likely your Executor will need to hire another probate attorney in that other
state to help move the asset to your heirs. I recently worked with a client with
timeshares in Hawaii, Nevada and Mexico. Additionally, they had oil rights in Oklahoma and
Texas. Lastly, of course, was their house and everyday assets in California. The total
value of the assets was $500,000. Due to the need for attorneys in multiple states the
costs and fees were $40,000 and it took almost two years to get everything into the
kids names! Not a "wealthy" person by some definitions but probate
attorneys everywhere benefited from their lack of planning.
What about the first death between a husband and a wife, do you know what can happen
there? Could your estate end up in probate? There is a common misconception that all
assets owned by husbands and wives belong to the other, automatically, at death.
This can be the case but is not an automatic rule. Additionally, it is rare that a husband
and wife, especially in a second marriage, successfully get all their assets into both of
their names. Last year I was retained by a woman whose husband of five years had died. He
had children from a first marriage, real estate in his name, a business in his name, lots
of debt and of course no living trust! In addition to the costs and delays of probate this
new widow had to fight with her husbands sister about the widows interest in
the family business, file a lawsuit to divide real estate her husband owned with a friend
of theirs and fight with a large life insurance company over a life insurance policy that
her husband had forgotten to change the beneficiary on. The mental drain was far worse
than the financial drain though the financial cost was substantial!
Just because your estate might be below the $1.5million federal estate tax exemption
level does not need you do need a trust. The costs and delays of probate are very real and
have no connection to the estate tax exemption levels. All of the above can be avoided
with a properly drafted and funded living trust. You can avoid the huge costs and delays
of a standard probate, you can avoid any disputes at the death of either spouse and you
can avoid the need for multiple attorneys if you happen to own assets in other states or
countries. A living trust can save your family many thousands of dollars, avoid any delays
and make sure your assets are distributed exactly as you desire! Do not let your family
become the focus of an article like this
call a qualified estate planning attorney
and get your living trust put together today!