HOW WE WORK - PROBATE

What does Probate Do?

     It transfers title to property from the decedent to the decedents chosen beneficiaries. However, in the case where no will exists the distribution is done according to the plan that the state of California has devised in the Probate Code.

Does Every Estate Need to be Probated?

     No. For example, small estates and estates that distribute all or almost all of their property through the use of beneficiary designations and joint tenancies may avoid probate even if the estate is worth millions. Not being subject to probate is not the same as not being subject to estate tax.

    However, before you decide that you fit into an exempt or non-exempt group you should consult an experienced attorney.

When is probate the right choice?

     Sometimes probate cannot be avoided, due to lost planning opportunities, however, in other cases probate is desireable. A few examples follow:

     Far Flung Families - Because probate is court administered to a certain degree and there are formalities which are followed particularly relating to notice and timing of actions. A family member who is living abroad or in a distant state can rest easier regarding administration and distribution.

     Desire for Closure - Often with trust administraion the process seems to just peter out. Questions remain about the ultimate  

    Family Dissension - Not all families get along well enough to deal with a matter as emotional and as financially challenging as the death of a family member. This is particularly true when the member dying is a parent. Knowing that a judge is available to settle all disputes often helps stubborn people become more reasonable and also protects family members who need the support of an unbiased forum to assert their rights.

How long can an unchallenged probate take from start to finish?

     About the same amount of time as a trust administration. Not precise enough  for you? About six months to a year depending on a number of factors.

How are exceptional costs determined in a probate?

     The Attorney seeking exceptional fees and costs must prove to the Court that all of the fees incurred were justified, reasonable, and necessary.

If I have a Trust, do I need a Will?

     You may still need a Will. If your trust is not fully funded some or all of your property may need to be probated in order to transfer title. This of course speaks to the need to fund your trust.  If your trust has not been updated to catch any property transfers that have occurred you may also need to go to probate.

NEWS - THE NEW NO CONTEST CLAUSE - ESTATE TAX PLANNING - A- B TRUST REVIEW

     Now is time to have your will reviewed by an Attorney so you can determine the impact of the the new law which will take effect January 1, 2009.

     It appears the Estate Tax Exemption will stay at three and one half million dollars for the individual and twice that for the married couple, however, the issue of portability is still their and that must be watched.

    A - B Trusts may be a thing of the past for estates under 3.5 million, unless the division is being used to protect and inheritance. Now is a good time to talk to your attorney about using a disclaimer trust.

PROBATE REPRESENTATION

Good probate representation focuses on providing guidance to the Executor, or other Personal Representative so that he or she can focus on marshalling the estate assets, discovering all heirs, discovering and giving notice to all probable and discoverable.

Our client - typically the estate's personal representative - is guided through each of the probate administration's intricacies including:

• Consultation on local rules and rules of court
• Locating heirs
• Locating and qualifying creditors
• Understanding the will and its terms
• The rules for intestate representatives
• Litigation in Probate Court
• Estate and Testimentary Accountings

   

Gerard W. O'Brien & Associates strives to provide caring and compassionate client service. We want our client's to know thatwe are here to aid them in every aspect of their probate

TEAM BASED PLANNING
Our legal system is adversarial, but your estate planning need not be. Perhaps over the years you have developed a network of advisors, an accountant, insurance advisor, stockbroker, or business advisor. We want to work with them as a part of working for you. Gerard W. O’Brien & Associates appreciates the contribution that these professionals have made to your life and estate. While we will always seek to move you and your estate in the most advantageous direction, and will point out where corrections need to be made, we can and do recognize that your planning team may have you on the right path already, and we are happy to be with the team.

ESTATE PLANNING

The information on this page is not intended to be legal advice, for estate Planning, Tax planning or probate law. Its sole purpose is to raise questions to consider. Using this information as legal advice is dangerous, not recommended and is done at your own risk. This information does not create an attorney client relationship between the publisher and anyone who reads the information.

INTEGRATED ESTATE PLANNING | This is a multi-disiplenary approach to Planning for sophisticated estates. Tax planning, probate avoidance, business succession planning, and asset protection are combined with estate planning to create a comprehensive goal focused plan. We use a team approach, utilizing your current professionals, in this type of work

ESTATE PLANNING | Your successor Trustee wants to complete the process as quickly as possible, while minimizing family disharmony.

PROBATE | The very word probate causes folks to dispair they envision scenes from Dicken's Bleak House and court personel who are as welcoming a crows. This is not true in Orange County California where probate can provide the formal administration framework to get families through difficult times. Additionallywith the new technologies available to personal representatives and attorneys the process can be reasonably quick, value priced and not at all like Bleak House.

TRUST ADMINISTRATION | We utilize a proven method which guides the Trustee through the settlement process in a smooth and informed manner. From the very beginning until the finish

RETIREMENT PLANNING | Maximize the benefits you have earned while preserving transferability, stretch, principal.

HEALTH CARE DOCUMENTS | You need a power of attorney for health care, a HIPAA declaration, and a living will. Without them your preferences during incapacity will not be followed.

ASSET PROTECTION TRUSTS | Keep your assets out of the hands of creditors, predators, and the public treasury, ethically and legally.

ESTATE & GIFT TAX PLANNING| Effective tax planning will not only lower income taxes while you’re alive by implementing optimal tax deferral and other strategies, but it will also free up cash for investment, business, or personal purposes.

QUALIFIED PERSONAL RESIDENCE TRUST   | If you are in a position where your estate will being the estate tax this irrevocable grantor-gift trust can save you thousand of dollars in taxes while still allowing you to control the gifted residence.

POWERS OF ATTORNEY | Perhaps the most flexible tool in an estate plan most people including many attorneys do not understand what can be accomplished using this device.

BUSINESS PLANNING | From years of planning experience, we have developed a systematic process that is both practical and client-friendly.

CHARITABLE GIFT PLANNING | Most people work to better not only their family's situation but the community they live in and the world in which their community is a citizen. We will help you transfer values as well as assets. | Perhaps the most flexible tool in an estate plan most people including many attorneys do not understand what can be accomplished using this device.

FORIEGN PRIVATE FOUNDATIONS | This may be the missing piece in your estate planing. Useful in large estates and for sophisticated investors.

WARNING TO ALL READERS

The information on this page is not intended to be legal advice, for estate Planning, Tax planning or probate law. Its sole purpose is to raise questions to consider. Using this information as legal advice is dangerous, not recommended and is done at your own risk. This information does not create an attorney client relationship between the publisher and anyone who reads the information.