Category: Probate

The Psychological and Emotional Dimensions of Will Contests

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A will contest occurs when a person with an interest in a decedent’s estate—such as a beneficiary under the will or a relative of the decedent—challenges the validity of the decedent’s will or the interpretation of its terms. These disputes are often legally challenging, but they have pressing emotional and psychological dimensions as well. Here’s what you can expect.

Common Psychological Challenges of Will Contests

Families may experience various psychological challenges that can give rise to will contests, such as:

  • Grief and loss: The loss of a loved one can significantly intensify emotions, which can cause family members to take knee-jerk reactions when issues arise. Furthermore, unresolved family dynamics caused by the death of a family member may lead surviving loved ones to launch will contests as part of those lingering disputes. 
  • Family rivalries: Long-standing tensions among surviving family members can boil over into will contests.
  • Perceived injustice/unfairness: Surviving heirs excluded from a decedent’s will or who received less than what they perceive as a fair share of the estate may bring will contests, claiming that other family members who inherited more must have exerted undue influence over the decedent to create an unfair estate plan. 

Emotional Impact on Families

Will contests can have substantial emotional effects on participants in the probate process. For example, surviving family members who file a will contest may experience significant stress and anxiety complicated by feelings of betrayal by their deceased loved one or other family members. Other members of the decedent’s family may also feel stressed over resolving a will contest, which can delay the resolution of their loved one’s affairs and cost the family substantial money. Executors/administrators of an estate subject to a will contest may also experience significant anxiety over defending their role or trying to carry out the decedent’s wishes as they perceived them in the will.

Finally, a will contest can overshadow a family’s positive memories and legacy for their deceased loved one. Heirs who file a will contest may view the decedent as unfairly cutting them out of their rightful inheritance. Furthermore, the whole family must focus on resolving an intense legal dispute over their deceased loved one’s assets rather than celebrating their loved one’s memory and legacy.

Psychological Tactics Used in Will Contests

Will contests may involve various kinds of psychological tactics by contestants, such as allegations of:

  • Undue influence: In an undue influence claim in a will contest, a contestant may allege that other family members improperly influenced a decedent to create a will that favored those family members over the individual contesting the will. 
  • Mental incapacity: Some will contests allege that a decedent lacked the mental capacity to create a will, leading to the acceptance of a prior will to probate or passing of the decedent’s estate through intestacy laws. 
  • Emotional manipulation or coercion: Contestants bringing a will contest may rely on emotional manipulation to sway the outcome, such as “guilt-tripping” family members into not defending against the will contest by claiming that their deceased loved one made an “unfair” will or estate plan. 

Strategies to Mitigate Emotional Fallout

People undertaking estate planning or families administering a deceased loved one’s will can mitigate the emotional and psychological consequences of a potential will contest through:

  • Precise estate planning: Creating a comprehensive, detailed estate plan and communicating the details of one’s estate plan to family members can reduce the risk of ambiguity or confusion and the chance of family members becoming disappointed with their inheritance once the individual passes away and their will goes into effect. 
  • Mediation: Family members on opposite sides of a will contest may pursue mediation to reach a settlement to resolve their dispute. 
  • Empathetic legal counsel: Attorneys representing parties in a will contest can provide compassionate, empathetic advice to help their clients navigate the emotional challenges that can arise. 

Contact a Probate Attorney Today

If you’re interested in contesting a will or need help defending someone else’s contest, an experienced probate lawyer can help you navigate the psychological and emotional complications. Contact Loew Law Group today for a confidential consultation to learn more about what to expect during a will contest.

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Digital Assets and Probate: Navigating the Evolving Landscape

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Digital assets continue to evolve and expand. Individuals can accumulate significant digital assets, which could have substantial value. Unfortunately, digital assets can pose unique challenges for estate planning. Without a comprehensive estate plan, your digital assets could be lost or mismanaged. In this blog, our California estate planning attorney discusses tips for ensuring your digital assets are protected within your estate plan. 

What Types of Digital Assets Can Be Included in a California Estate Plan?

Digital assets encompass a wide variety of electronic and online property. All digital assets can and should be included in your estate plan. Examples of digital assets to include in your Will and estate plan include:

  • Financial accounts, including investment portfolios, online bank accounts, payment services, and cryptocurrency wallets
  • Digital media libraries, digital subscriptions, streaming services, photos, videos, and e-books
  • Social media accounts, including blogs, Facebook, LinkedIn, Instagram, Twitter, etc.
  • Messaging apps and email accounts
  • Cloud storage accounts, including Dropbox, Google Drive, etc.
  • Domain names and websites 
  • Software licenses 
  • Online businesses, including Etsy and E-Bay 

It is easy to forget about digital assets. Tracking your online presence for a few months can identify rarely used digital assets that need to be included in your digital inventory.

What Do I Need to Do to Include My Digital Assets in an Estate Plan?

Begin by creating a digital inventory for estate planning. List all accounts, including usernames, passwords, access codes, and encryption keys. Keep this list in a secure place for security reasons. Review security for your digital assets. Data encryption, strong passwords, and two-factor authentication can increase security for these assets. 

Identify all electronic devices used to access digital assets. Print the website terms for review. Some user agreements, terms of service, and privacy policies could impact the transfer of digital assets or access to digital assets by heirs. Some accounts may have legacy settings you can use to designate someone to take control of the account after your death or incapacitation. 

Communicate your wishes in your estate plan. Update your Will to include digital assets. Also, include digital asset provisions in your Durable Power of Attorney and a living trust. 

Discuss digital assets with family members to make them aware of these assets and your wishes. Making your family aware of your wishes and who you appoint to manage your digital assets can avoid problems after your death. 

Naming a Digital Executor to Manage Digital Assets After Your Death 

The California Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) gives you the right to name an agent to manage digital assets. This person will have access to your digital assets to transfer control of assets to your beneficiaries. You may want to use a password manager to improve security and make accessing all digital assets easier for your digital executor.

Learn More During a Free Consultation With a California Estate Planning Attorney 

Digital assets can have substantial value. Do not overlook these assets during estate planning. Contact the Loew Law Group to schedule a free case evaluation with an experienced California estate planning attorney.

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Most Common Probate Mistakes

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Serving as an executor can be a stressful situation because most non-lawyers have never done this type of task before. It is easy to make a mistake. Some mistakes can cost the estate money, while other errors can make you personally liable.

When you get named as the executor of a will, you do not have to do the work yourself. You can hire a California estate planning attorney to handle probating the will and administering the estate. The fees for the lawyer will get paid by the estate. Here are some of the most common probate mistakes that executors make:

Getting in Over Their Heads

Unless you are an accountant, you probably do not want to try to learn accounting just for the purpose of handling this estate. If you are not a lawyer, you probably do not want to spend 100+ hours researching the law to learn what your duties are and how to take the estate through probate.

Even if you do not want to have an attorney take care of the probate matters, you might want to at least consult with one to find out what you are supposed to do.

Death and Taxes

When a person dies, their days of having to prepare tax returns and pay taxes are not yet over. Both the deceased individual and the estate have an obligation to file tax returns and pay whatever income and estate taxes are due. 

Estate tax returns are complicated. When a non-professional serves as an executor, it is more likely that there will be errors and miscalculations on the estate tax forms. The situation becomes particularly challenging when the executor distributes assets before learning that the estate owes additional taxes.

Not Knowing About Small Estate Administration

California provides an alternative to the formal probate process for small estates. The small estate administration process is faster and less expensive than formal probate. 

If an executor does not know about the small estate option, the heirs could wait much longer to receive their assets. Also, there will be less money at the end for the beneficiaries because the estate had to spend thousands more on formal probate.

Your Duty to Keep the Beneficiaries and Heirs Informed

The law requires the executor to provide notice to the heirs and beneficiaries of specific matters. When a layperson tries to serve as the executor of an estate, he often makes the mistake of not providing those notices. Failing to communicate with the heirs or beneficiaries is a common reason that the executor or estate gets sued.

Not Understanding the Difference Between Estate Assets and Other Assets

The executor has to gather all the assets, create an inventory, and run the assets through probate before distributing them. This process can take months to a year or longer.

Not every asset is an estate asset. Some items do not have to go through probate. Non-estate assets can get distributed immediately. For example, life insurance proceeds can often get to the beneficiaries within a few weeks. 

Also, non-estate assets do not count for purposes of federal estate taxes. Not understanding the difference between estate assets and non-estate assets can cost the estate plenty in terms of administration costs and taxes.

You can avoid these and other mistakes by working with a California estate planning attorney. Get in touch with our office today.

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Who Inherits When There Is No Will in California?

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When a person dies without leaving a valid will or trust, that person has died “intestate.” Failing to ever make a will or create a trust document could cause intestacy, but many other events could also invalidate a will or make a will impossible to probate.

A California estate planning attorney can help you protect your own estate from intestacy. A lawyer can also help your family if a close relative dies intestate, by determining who will inherit the decedent’s assets and guiding the estate through the probate process. 

The California Rules for Intestate Succession

The California Probate Code sets out the rules for intestate succession. These rules can apply when the entire estate is intestate, or to the part of an estate that a will or other testamentary document does not cover.

Some of the rules for intestate succession in California include the following:

  • The surviving spouse inherits the half of the community property that the decedent owned in California at the time of death.
  • The surviving spouse receives the entire estate, including the decedent’s separate and community property, if the decedent does not have any surviving children, grandchildren, or other descendants, or any surviving parents, brothers, sisters, or any issue of the decedent’s deceased brothers or sisters.
  • The surviving spouse will get half of the decedent’s separate property in the intestate estate if the decedent has only one surviving child, or has surviving issue from only one deceased child.
  • If the decedent has more than one surviving child, or a surviving child and the issue of at least one deceased child, or the issue of more than one deceased child, the surviving spouse will get one-third of the decedent’s separate property in the intestate estate.

The California Probate Code provides detailed rules for how the legal beneficiaries other than the surviving spouse are to divide and distribute their shares of the decedent’s intestate estate. The rules also cover the situation in which an intestate person dies without leaving a surviving spouse.

How a Will Could Become Invalid or Impossible to Probate

Your lawyer could write a beautiful will that contains all the necessary terms and information to distribute your assets to your loved ones one day when you die. Many people take such a document and stick it in a drawer, never to look at it again. They check the “write a will” task off of their To-Do list and move on to other things. 

Unfortunately, using that strategy could make all of that work pointless for your heirs. Here are some of the things that could happen that make the will impossible to probate:

  • A potential heir successfully contests the will.
  • The court refuses to accept the will because of technical defects in the document.
  • The will has been lost, stolen, or destroyed.

These events could automatically invalidate your will if you do not write an updated will:

  • If you revoke a prior will but do not write a new will before you die.
  • If your marriage or domestic partnership ends in divorce or annulment, or is otherwise terminated, and your will does not expressly cover that situation.  In that case, California law will change or delete some of the terms as they relate to your former spouse or partner, unless you marry each other again or unless you execute a new will after you are divorced.

We understand that these rules are complex, but you do not have to learn all the laws of intestacy on your own. A California estate planning attorney can walk you through the rules and regulations relevant to your situation. Contact us today.

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What Happens to Unpaid Bills and Creditors in a Probate Matter?

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The California Probate Code sets out the rules about the payment of debts of decedents in Sections 11420 – 11429. If your close relative died recently, you might be wondering what happens to unpaid bills and creditors in a probate matter. A California probate attorney could handle the administration of the estate so that you do not have to deal with things like paying the estate debts and many other probate administration issues.

Priorities of Debts and Creditors

Debts with the highest priority will get paid before other debts. All of the debts of one priority class will get paid before any debts of a lower priority group. If there is not enough money to pay all the debts in an entire category in full, each creditor in that class will get paid a proportional share, unless a statute directs otherwise. This is the order of priority for the payment of debts of the decedent:

  1. Debts owed to the United States or the State of California get paid first.
  2. The reasonable expenses to administer the estate get paid next, even before debts the deceased person incurred during his lifetime. If there were costs to administer specific property that secured debts, the reasonable administration costs for that asset will get paid before the indebtedness the asset secures.
  3. If there is enough money remaining in the estate after paying categories 1 and 2, then the estate will sell the property secured by mortgages, deeds of trust, judgment liens, and other liens. Those obligations will get paid with the sales proceeds. If the proceeds are not enough to pay those debts in full, the unpaid portion will get classified as a general debt, #8, below.
  4. Funeral expenses get paid next.
  5. The medical bills and other reasonable expenses from the decedent’s last illness or injury are next in priority.
  6. If there is money remaining at this point, the estate administrator can pay a family allowance, as per the California Probate Code.
  7. Wage claims get paid after a family allowance.
  8. General debts of the decedent have the last priority for payment.

When the personal representative has gathered enough money to reserve for the administration costs and all of the items other than the general debts, the administrator should promptly pay the funeral expenses, medical bills and other expenses of the final illness, family allowance, and wage claims. Other than those four categories, the personal representative does not have to pay any debts from the estate assets until the probate court issues an order for the representative to do so.

Four months or more after the court issues letters of administration to the personal representative, the court can enter an order directing the personal representative to pay debts of the decedent. If there is not enough money in the estate to pay all creditors in full, the court order will stipulate the amount that each creditor will get paid. The personal representative gets discharged from responsibility by the court after making the ordered payments.

Administering a probate estate is complicated. Our state laws contain many regulations a personal representative must follow. If you get named as a personal representative, you do not have to do the tasks yourself. You can hire a California probate attorney to handle the administration of the estate. Contact us today.

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How Long Does Probate Take in California?

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On average, probate in California takes about 12 to 18 months. It can get done in as little as nine months, but that is unusual. If there are any problems, it can take up to two years or longer.

There are ways to get assets to your loved ones faster. A California probate attorney can explain your options and help you set up an estate plan to protect your beneficiaries.

The Stages of the Probate Process

When everything goes smoothly and there are no snags, like a will contest, a dispute about ownership of assets, or improper creditor claims, the probate process in California typically has seven phases. If there are issues, additional steps might be necessary.

  1. Find the will. Sometimes, it is merely a matter of calling the lawyer who prepared the will and letting them know about the death. The lawyer pulls the document out of the client’s file and begins the administration process. If the family does not know who wrote the will, they might have to dig through drawers and boxes, searching for the paperwork. A will should not be stored in a safe deposit box because it can take a court order to open the box. 
  1. Get the death certificate. Every bank, brokerage firm, life insurance company, and other relevant organization will need an original death certificate. 
  1. File a Petition for Probate with the probate court. This filing typically includes a copy of the will, a death certificate, and the Petition for Probate. If you found a will, the court can appoint the person the decedent named in the will to serve as the executor of the will. If no one found a will, the judge can appoint someone to serve as the administrator of the intestate (no will) estate. 
  1. Locate the assets. This phase can take many months, even into the next year, to wait for annual statements in the mail from companies where the decedent had accounts. Even the most organized person might not keep information about every single asset in one place. Some items will need professional appraisals to determine their current value.
  1. Pay the decedent’s creditors and taxes. The executor has to evaluate the decedent’s bills, including from the final illness, determine which ones are valid, and pay them. The executor has to file the decedent’s final income tax return and the estate tax return.
  1. Distribute assets to the heirs and beneficiaries. After dealing with all of the liabilities of the decedent’s estate, the executor or administrator can distribute the remaining assets to the legal heirs and beneficiaries. If there was a will, it will dictate who receives which items, within the bounds of California law on legal heirs. If there was no will, the assets will pass according to the laws of intestacy.
  1. Wrap up the estate. An accounting will go to the probate court for approval. After all the tasks get performed and approved, the court will close the probate file.

Contact our office today. We understand that these steps can feel overwhelming, particularly when you are grieving over the loss of your loved one. You do not have to handle these things on your own. Many people hire a California probate attorney to administer the estate for them. Also, getting a living trust can take many assets out of the probate process. 

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The Real Cost of Probate in California

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It can be expensive and time-consuming to take an estate through the probate courts in California. There are many fees set by the Probate Code that will come out of the estate before the beneficiaries receive a penny. Sometimes, people have to sell the family home or farm to pay the probate costs. 

Many people could avoid the need for probate with some thoughtful estate planning. Loew Law Group’s California estate planning attorneys can help you set up a plan to help you and your heirs.

Our experienced probate attorneys are happy to help you and your family through the difficult probate administration process, if a court proceeding becomes necessary.  But we’re also here to help you plan ahead, and avoid this outcome for your own estate if possible.

Who Has to Go Through Probate

Your family will have to go through probate court to get your assets if your estate is worth more than $166,250 – unless you took steps to avoid probate, like setting up a living trust or arranging for the transfer of assets outside of probate. The court will charge around $400 for the filing fee to start the probate case. You will have to pay a variety of additional expenses, like obtaining certified copies of any court documents you need, and publishing notice of the probate in a local newspaper. 

If the estate has a value of less than $166,250, you usually do not have to go through formal probate proceedings. But for assets of greater value, a probate may be required. Two types of probate cases go through the probate courts in California – estates in which the decedent left a valid will, and intestate estates, where the deceased person did not have a valid will or trust.

Statutory Probate Fees

California sets statutory attorney and personal representative fees for cases that go through the probate courts. Both the probate attorney and the personal representative can put in a claim for fees.

If there are any disputes about who will receive which assets and what proportion of the items, the attorney fees can skyrocket well above the number shown above.  Work performed by attorneys to resolve such disputes is considered to be “extraordinary services,” for which an hourly fee is typically charged on top of the statutory probate fees. Your family will only get what is left after the payment of all of the fees and expenses.

Also, the “value” of the estate for purposes of calculating the fees is not the net value. Let’s say that the estate includes a $1,000,000 house. Although the property has a $750,000 mortgage, the court will base the fees for the personal representative and probate attorney on the $1,000,000 amount, not on the net value of $250,000.

Another Real Cost of Having to Go Through Probate in California

Another “cost” of having to go through probate in California is the hardship your family can experience when they have to wait a year or two before they receive the assets from your estate. Your spouse, children, and other loved ones might have to struggle to make ends meet while they are dealing with the grief of losing you.  

You can spare your family both the financial and time costs of probate in California if you set up an estate plan designed to avoid probate. Talk with our California estate planning attorneys today. Our California estate planning attorneys can help you create the documents you need to protect your loved ones and your estate.