Who Gets Grandma's Antique China? Do Not Forget the Minor Details and Sentimental Items in Estate Planning.

We have had two cases in the last couple of years where one of the attorneys from our office had to spend days sitting with the disputing relatives in estate cases while they took turns going through personal property and effects of their relative. 

Not only was this emotional for the parties but costly from a legal fee standpoint. The parties required it since without cousel present, it could not be accomplished for a variety of reasons.

A recent New York Times article by finance writer Paul Sullivan, When Dividing Assets the Little Things Matter (4/15/16) gives all of us a reminder and good ideas on how to not overlook the personal items that may not have as much monetary value as cash, real estate, securities but have sentimental value as well as some monetary value. 

When relatives go in and take personal property without agreement between the parties this can be a huge source of future conflict.  Photographs are often important, for example, but with scanning companies this can be taken care of as long as one relative has not taken the albums and refused to cooperate. 

This is something that one can do themselves by making lists, taking photographs or videos, etc. We find, however, that for our senior clients it is often overwhelming for them to do. We can send a paralegal or attorney to your home to assist the process which is then covered by the attorney-client privilege and is part of the estate planning process. This can even be done when parents or grandparents decide to downsize and move to avoid family disputes. 

For the do-it-yourselfers, there is a company FairSplit that has an interesting concept of having licensed insurance adjusters come to your home and take photographs and videos of all items and list them with price based on square footage. This company also has a less expensive online option where you do the listing yourself. 

As attorneys we can incorporate this and monitor it so the parties keep track and it is used for the final reports. With technology, there are a lot of tools that can make this entire process easier and less expensive. Lesson is though not to forget the small details and personal mementos, and get help to get it done. Advance planning and hiring someone is far less expensive than legal fees later and less painful than fractured families later. 

Posted by Henry (Hank) Moravec

Four Estate Planning Documents Everyone Should Have

Is "estate planning" only for the wealthy or for those who are leaving large inheritances or have tax shelters? No. the Wall Street Journal recently had an article on this very topic.  The WSJ article emphasized, as we estate and probate lawyers know, that this is not just about planning to avoid taxes, but is about what happens if you pass away or if you get very sick and live.  Here's are the four estate-planning documents everyone needs regardless of your wealth. Planning also helps prevent litigation and saves what money there is in the estate and helps preseve family relationships.

1.  Will.

Many people think they don't need a will. But sitting down with a lawyer and completing a will is the best way to ensure your wishes will be fulfilled—and to avoid leaving anything up to the courts. This is important if there are minor children who need guardians or multiple adult children who are heirs.  

An important part of the will is naming the executor who is in charge of managing an estate, including paying bills. While you don't need to tell anyone what is in your will, it's important to let your designated executor know he or she has been chosen to do that job, and it might be a good idea to inform other family members, too.  You should also have have discussions with family members about how personal effects or family heirlooms are handled.

There may be a temptation to do a will on the cheap, using online resources. As the WSJ advised, "Tread warily." "Small details can end up invalidating wills or leaving your wishes unfulfilled."

2.  Durable power of attorney.

A power of attorney can give someone else the authority to act as your "agent" and make legal and financial decisions should you become incapacitated.

Don't take this decision lightly. Unlike an executor, this could be a continuing role. Give a serious thought about to whom you are giving power of attorney.  It's important to consider that this person will be managing your finances. Does this person have the skill sets for managing money?

In addition, always name a backup. Many people will name their spouse, but what happens if both are injured in a car wreck or both develop signs of dementia?

3.  Medical power of attorney.

This document—also known as a health-care proxy—enables any adult you designate to make medical decisions on your behalf should you be unable to make them yourself.  One idea is to pick the person who you think is going to stay calm in a crisis.  Who can handle making medical decisions in a difficult situation without being overcome by emotion or grief? 

4.  A living will.

A living will—sometimes known as an advanced health-care directive—specifies in writing your wishes for end-of-life care. That includes such things as whether you want to be resuscitated if your breathing or heartbeat stops, or whether you want to be kept alive through artificial respiration or feeding.

When it comes both to the medical power of attorney and living will, sit down and have a conversation with loved ones about your wishes. It may not be easy, but will help later in what will be a difficult time for your family.

5.  Be organized.  Make things easier for everyone by keeping your important documents, financial records and even information about doctors and medication updated and in one place. (Just not in a safe-deposit box, which will require a power of attorney to access.)

Once a year, provide your estate and probate attorney with an updated list of your bank and investment accounts, and any other important information, which they can hold in your file.  

Posted by Henry J. Moravec, III  You can reach him at  hm@moravecslaw.com or 626-793-3210.

Moravec, Varga and Mooney website: www.moravecslaw.com

Do I Need to Hire a Lawyer in Probate Court?

One common question that we often hear is the following:

"Do I have to hire a lawyer in Probate Court?"

or its close relative:

"Can I represent myself in Probate Court?"

I would note that this question also comes up during Probate Court hearings on a regular basis, because on a typical day, out of about 50 or so matters on the calendar there are bound to be 2 or 3 people representing themselves without lawyers.  Invariably, of the two or three, one or two of them is told by the judge to "seek legal advice."

You would expect a lawyer to say "of course you need to hire a lawyer" but the most accurate answer is that the need depends upon the facts:

1. If you have plenty of time on your hands, and no time pressure with respect to the estate, and no pressure from creditors or heirs, you might be able to represent yourself and have no downside.   Most people consider "wasting time" a downside, hence the first qualification.  A continuance, which is what the Court calls the situation where a matter scheduled for January 31 has to to be rescheduled for March 5 because a document is not properly prepared, causes a delay of the time of the continuance, in this example over 30 days.  So, if it does not matter how long it takes to, for example, take title to property, then the client would not be upset with the delay.  However, if a creditor or another heir wants things concluded, the delay is problematic.

2  So, that leads us to the next generalization:  if time is in any sense of the essence, only by using an experienced probate lawyer can you be confident to minimize delays.   This also applies if the client simply wants to not worry about the matter, because regardless of how long the process takes, the stress factor drops if a lawyer helps with the case.

3. Then, there are the situations in which you absolutely need a lawyer, and as soon as possible: (a) any time there is a party against you.  This is because a mistake you make may result in liability to the other party, be they creditor or heir.  (b) Any time there is a potential tax problem of the decedent.  (c) any time there is a creditor of the decedent which has a claim which may be disputed.

4. Finally, if you do not want the burden of responsibility, you should always hire a lawyer.   If, for example one sibling is nominated to be the administrator, and part of the job is reporting on the administration to the other siblings, use of an experienced probate lawyer greatly increases the odds that the administration will be stress free, since an expert will be available to answer questions.  This factor alone seems like a matter of common sense but is in fact important.  Many "probate disputes" start when the administrator is un-represented and an avoidable mistake is made.

 The Cost May Be Less Than You Think

 Probate fees are significantly less than fees charged by realtors to market and sell property.  Although there are some discount real estate (market your property yourself) brokerages, in the main no one considers the standard 5% commission on a real estate transaction to be out of line, and as a matter of fact considering the amount of people who voluntarily pay it, it is considered very much "in line."  To sell a $1,000,000 house, in a transaction which might take 60 to 90 days, costs $50,000.   To probate a $1,000,000 estate, which might take more than a year, and collect various assets and deal with multiple beneficiaries, and protect yourself as a fiduciary from liability costs a $23,000 statutory fee in Probate Court.   Although there are sometimes other fees and costs for additional work, at a fundamental level in this area legal representation is less expensive that selling a house.

So, it turns out that advice is actually simple.  Save money if you can, but don't be "penny wise and pound foolish."

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

Probate and Trust Administration Top Posts

 The other day I was looking through all the stats on the blog, to see the most popular posts.  In first place is What happens when someone dies without a will?  with 1550 views.  If you liked that one, check the  2013 related post: What happens when someone dies without a will? Does joint tenancy save the day? The rest of the top five posts of all time on the blog are:

2. Recent California Decision On Breach Of Trust & Trustee Fiduciary Duties   with 1010 views.

3. Recent California Decision Highlights Trustee's Breach Of Duties And Misconduct When Trustee Is Also A Beneficiary  with 961 views

4. What Is Undue Influence In California Probate Courts? with 740 views, and 

5. Potential Estate Tax Implications Of J.D. Salinger's Death  with 490 views.

We feel that there is an overall theme developing here, since the most viewed posts are probably connected with what people are searching for on the Internet and what brings them to the blog.  

As a technical matter, the permanent change to a $5,000,000 exemption per person means that for many people, estate taxes are no longer an issue which would drive estate planning.  It is a huge difference to not so long ago when the exemption was only $600,000.

However, family relationships cannot be legislated, and the conflicts which develop after death are very much unaffected by tax laws.  If one child thinks that their sibling unduly influenced Mom, well, that is simply an issue which will always be around.

We see our practice in disputed matters steadily expanding, so these stats are not surprising to us. 

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.

What Happens when a Person Dies with an Ambiguous Will?

I have been posting lately on the various issue and challenges raised by probate and trust litigation.  Now, just to be clear, "litigation" means an actual filing in a Court of law.   But what of something that rises to the level of a mere "argument" or maybe a level or two above an argument, perhaps where each person feels they need a lawyer to advise them, but does not actually end up in court?  In other words, a "dispute?"

It is probably fair to predict that for every matter which actually results in litigation in the probate courts, there are some multiple of matters over which there is a dispute which, although it may be serious to the parties, does not (fortunately) result in actual litigation. 

A new matter came into the office the other day which reminded me of law school, where the law professors try to fit all of the possible legal issues into one fact pattern.  This matter had the following facts:

1. The decedent elected to have the most "simple" Will he could get.  I am not sure where he got it, but it only consisted of a couple of pages.  In it, his stepson was given "all the Widgets I own at the time of my death."   There was no list of Widgets either in the Will or set forth otherwise.

2. Of course, the relationship between the stepson and the biological son (who was to get the remainder of the assets) was not good.

3. Like many people do, the decedent made gifts during his lifetime.  One of them was a gift of a relatively valuable Widget #1 to his biological son.  This was actually shipped by the decedent to the biological son, but no written notation of the gift was made.

4.  The decedent also, like many people, talked.  All kidding aside, he also promised one reasonably valuable Widget #2 to his grandson (the son of the biological son).  Although he talked about it with various people, and referred to the Widget as "grandson's Widget" he never actually delivered it to the grandson.  After the decedent's death, biological son shipped this Widget to the grandson.  Like the Widget in paragraph 3 above, there was no written notation.

5. The decedent also had charitable intent.  Shortly before his death he had his biological son contact a charity which ran a Widget museum.  He wanted to donate one valuable and rare Widget #3 to the museum.  There was an email exchange on this topic between the museum and the decedent's biological son about three months before the decedent passed away, but no formal contract.  After the decedent's death the museum accepted the rare Widget.

6.  Last but not least, the decedent of course had a comprehensive set of Widget making and Widget repairing tools and spare parts.  He also was in the process of making a couple of Widgets (which would be #4 and #5 --- of course, the guy was a Widget maker, what would one expect?).   After the decedent died, the biological son, not being a Widget maker, asked the museum if they would like this esoteric set of personal property, the museum said yes.

Now the biological son learns a few things:  the step son basically wants to know why he should not get Widgets 1 through 3, and also that the step son thinks that some of the "materials" were close enough to being completed  "Widgets" that they should have gone to hims as "Widgets 4 and 5" under the Will.

What result?  Well, at the moment there is no court "litigation" on these claims.  Everyone is upset, but how will it work out?

My predictions, which I will expand upon in upcoming posts, are:

Widget #1 stays with biological son.  Widget #2 might have to be returned, depending upon whether the executor can enforce the "oral" gift under local law.  Widget #3 may well come back into the estate, because charities do not like to get a reputation for holding on to property at the expense of heirs.  However, Widget #3 also has a written pledge (the email).  Widgets #4 and #5 probably stay with charity, as the executor can conclude that they are not completed Widgets.

This is exactly the sort of disputes which can be avoided if appropriate time is taken in the drafting of estate planning documents in the first place.  And this avoidance does depend upon having someone with experience advise you when you draft documents.  A good lesson to keep in mind.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

The Los Angeles area office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.

Litigation in the Probate Courts Part II, How Long Does it Take?

In the first installment of this series of posts, we talked about the general aspects of probate litigation, and what to expect if you find yourself involved in a case.  In this post I will talk about how long each phase of a case may take, and what a litigant can expect along the way.  Often, the timing of a case is as important as the substance of the claims.

A case breaks down into the following segments:

A. Pleading, or the making of allegations by one side and the corresponding denial of allegations by the other side.  Pleading alone can take several months.  In a Probate case, it is rare for one party to file any sort of motion, the other party to receive it and object, and for the parties to both agree with the Court to move to the next stage in anything less than about four months, sometimes much longer.  The other factor is that in a Probate case there are often more than two sides.  Each beneficiary of an estate could have a different view of a matter.

B. Discovery, or additional fact finding.   Additional fact finding always takes time.  For example, let say that the matter at issue is a beneficiary demanding an accounting.  Well, the court may say "when can you have that accounting done?"  The party may respond "in three months."  Then the court orders it filed, and of course the other side gets time to examine it and have specific objections, which might take a couple of more months.  So now you could easily have taken a year.

C. Preliminary Orders, which are Orders from the Court to keep the case moving along.  There may be some preliminary orders along the way, but those could be expensive to get and are always time consuming.  To continue with the example above, a typical case may start with a beneficiary accusing the trustee of some act and asking that the trustee be removed.  However, if there has not been an accounting filed the court will want to see that first, and that may take a few months.

D.  A formal mediation. At this point a year or so may have gone by, and the parties are already growing tired.  At this point the Court will offer the parties a chance to mediate the matter before a private mediator.  Often, this is the point at which the case settles.  Mediation can be very helpful, since it is often in mediation that, for the first time, one side hears how the other side's arguments and their arguments are viewed by an unbiased third party.

E.  An Evidentiary Hearing.  Thiis is what most people consider "a trial" to be, or what they think of by "going to court."  Not only do the first four steps often take more than a year to complete, it now may take a year to get a hearing date on a matter that will take more than a couple of hours of evidence.  Two years with no resolution feels like a long time, and it is.

F.  Appeals, if any.  An actual appeal, with briefing schedule to the appellate court, could be another year.  Often, appeals are filed simply to create the possibility of additional settlement discussions.

As you can see, the rather extreme length of time it can take to obtain a court order is a factor in the dispute,  independent of the actual merits of the claim.  Time is a factor which simply must be discussed with the client, because not only is "time" an issue, but costs rise along with time.  There is no positive way to really spin this, but this is why most cases settle -- it would simply take too long and cost too much to achieve complete victory.

At Moravec, Varga & Mooney we have extensive experience with disputed matters and the various phases of a case.  We have found that it is a great help to a client to give them an honest appraisal of how long a case can actually take.  It can be an extremely bad thing if a lawyer is "too optimistic" about how quickly a client can get a case to a judge.  If the client does not understand the time and costs involved, the time and cost can simply overwhelm the merits of the case, which can be a disaster if the case is actually a good one.


Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

The Los Angeles area office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.

What Happens When Someone Dies Without a Will? Does Joint Tenancy Save the Day?

One of the features of Blogger is that you can see the list of the most popular posts on a blog.  Currently our number one post is "What happens when someone dies without a Will?"    It is easy to see why this would be a popular search, since it may well be true that a very large number of people die without a Will or a Trust, which is known as dying "intestate" (the technical legal term). 

The chap to the right looks very satisfied with himself.  He may have been thinking "I have my property sorted out and I did it all by myself!"  However, he may well have simply created a minefield for his heirs.

Our post from 2009 addressed the basic question of what happens in an intestate estate administration.  That post set forth the basic ways in which property can be transferred when someone dies without a Will or Trust: (I) by small estate declaration, (II) by "contract" or (III) through a probate proceeding.

In this post I will elaborate a bit on what by "contract" means.  We use "contract" to cover a wide range of non-probate transfers.  The most common may be the joint tenancy.   Joint tenancy means that title to a piece of property, either personal property, such as a bank account, or real property, is in the name of two or more people as joint tenants.  The long phrase is "joint tenants with right of survivorship" and what it simply means is that when any joint tenant dies, upon proof of death, the property passes to the other joint tenants.

Joint tenancy has always had one advantage going for it -- simplicity.   It is not a big deal to put a bank account into joint tenancy, you just fill out the appropriate form at the bank.  For real property, a deed is required, but these days many people attempt to fill out their own deed and often are successful.  When real property is purchased, the escrow company can simply put the title into joint tenancy at the request of the buyer.

However, joint tenancy has a number of disadvantages, which can run the gamut from annoying to serious:

1. It assumes order of death.   For estate planning purposes, properly drafted documents take into account variables in who dies first.  At best, if a parent puts a child on as a joint tenant and the child dies first, it is a waste of effort.  At worst, if the child is put on only one deed with the intent of that particular property going to that child, and ultimately to that child's children or spouse, and the child dies, then the property reverts to the parent, and does not go to the child's heirs.

2. It provides no protection against disability.  One of the benefits of a revocable trust is that it applies if the settlor (or creator) of the trust becomes disabled.   Putting property in joint tenancy does not have any management upside -- both joint tenants must executed any documents of sale or financing.  So if a parent puts a property in joint tenancy and becomes incompetent, that parent could not execute any documents with respect to that property, and problems could easily arise.

3. No creditor protection on first death. Another issue with a simple joint tenancy between husband and wife is that the change in tax laws has perhaps led some to ignore other, non tax issues.  For example, a couple who are in no danger of amassing an estate worth $10 million could have all of their assets in joint tenancy, and thus if one dies all goes to the survivor.  However, this does not deal with: creditors of the surviving spouse, everything from potential remarriage to medical bills.   With a trust, half of the couple's net worth would have been protected.  Plus, upon the death of both parents a probate would be necessary.

4. It is easy to forget.  A joint tenancy is so simple that its easy for a person to forget they even have set one up.  We have had many instances where one of the contingencies discussed in this memo occurs and the client, or the client's children, are surprised to learn of  a joint tenancy property or account set up years before.

5. It does not verify actual ownership interest.  This is a real nuts and bolts problem.  For example, take refinancing or sales of property.  Once a person is a joint tenant, they have to sign off on all of the documents relating to that property.   A second point that comes up is whether, when a couple puts a child on a deed as a joint tenant, if they intended a specific gift.  The IRS generally says "no" but the County Assessor, who is looking to re-assess property, may say "yes."  In California, the Proposition 13 property taxation system always needs to be considered.

The other, most common way an interest in property can pass is by "beneficiary designation" which I will cover in another post.

For now, the main thing to consider is that estate planning is all about "planning" for various contingencies.  Many clients are unaware of all the possible contingencies which might affect them.  That is where we can help, since we have experience with just those contingencies a client might miss.

When it comes to sorting out an estate of a person who dies intestate, many of the same contingencies a client should have considered while alive are triggered.   This is where our expertise again is of great help to clients, because just as much planning can occur after a person dies as before.

The majority of the work in our practice, in terms of hours spent, is always on post death administration, be it sorting out an intestate estate or resolving a dispute.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a complimentary 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

A Candidate for the Longest Estate Administration - over 60 years!

An Epic Story of Procrastination?  Or an Epic Story of a Distaste for English Weather?

The U.K.'s Daily Mail has a story about, a long (very, very long) Probate dispute.

Incredibly, an English estate with a manor house and (at one time) 3,000 acres of farmland, and a steady rental income went unclaimed for decades.  The case is both interesting in a "Downton Abbey" kid of way, and a procedural way:  what is the result if a beneficiary refuses to accept property?

The estate is known as the Figg-Hoblyn estate, named after the family who first lived there beginning in the 1600s.   The saga which recently ended began with the estate plan set up in 1856.  As was the custom at the time, the estate was left to the oldest surviving male heir.  For those interested in what happened as a technical matter (well, let's not count how many of you make up that category, shall we?) the "estate plan" in question was not a Will or a Trust, but a deed, which contained trust-like provisions for ownership of the property and its income.  

Squire William Hoblyn had one son and four daughters.  When his son, Ernest, died shortly after William's death, the downside of the "eldest male heir system" was  brought into full relief.  None of the other Hoblyn daughters had yet married.  When one of them finally did marry, she first moved to Canada and then California (as, presumably, she did not have a legal right to the "family" estate).

Her oldest son, Francis Figg-Hoblyn, visited the estate in 1947 (after presumably becoming aware that he was now the oldest male heir), but was daunted by the amount of work needed to be done, and never took possession.  When Francis died in 1965 his eldest son, John, a former college professor with what reads as a fairly unconventional lifestyle, also refused to accept the estate, citing an unwillingness to pay taxes as a reason.  In the various articles you see from a Google search, it not entirely clear why John did not want to formally take possession of the property.,  "Taxes" do not seem to be the actual reason, since John would have owed no U.S. tax to accept the property, and  any UK tax could be paid by selling some of the property or through the collection of rental income.

Finally, when John died in 2011, the English Court was able to entertain a motion to amend the original Will to allow John's sisters to inherit the property.  This ruling was disappointing to William, a male cousin, but is welcomed by the local residents who now know the estate, which has been vacant since at least the 1940s, may now be rehabilitated by the new owner.

What is sometimes glossed over in the articles (since the thought of any "unclaimed" estate is so entertaining to those of us who will never inherit an estate in the first place) is that the court appointed administrator  in England had actually been renting the land out and collecting the rents during this time period.  This is what would happen in a California court if any heir could not be located -- the administration of the estate would continue, and distributions would be postponed until the heir was able to accept them. What makes the Figg-Hoblyn story so unusual is the length of time that a known heir refuses an inheritance.

The full article can be found here: http://www.dailymail.co.uk/news/article-2293296/The-5million-Cornwall-estate-left-ruins-rightful-male-heir-claim-40-years.html, or simply Google "Hoblyn estate" for further reading.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership.
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is www.moravecslaw.com

The firm's office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.  There is ample free parking.

Seven Questions I Ask Clients When Mediating Estate And Family Property Conflicts

I have noticed an increase in the number of estates, trusts, and probate-related disputes over the last few years. Part of the increase may be our aging baby boomer population and part of it may be due to the economic downturn. In some of our cases, we use mediation to resolve these disputes -- entire cases or isolated issues. 

For example, in cases in which a residence is the sole or primary asset, mediation with regard to a possible expedited sale of the house with the proceeds to be put in escrow pending resolution of the lawsuit can benefit the parties since empty houses deteriorate rapidly and are difficult to insure. Such a sale can also serve as a reality check for the parties who may be improperly estimating the fair market value of the house. 

Why is mediation used even when each side is sure that he or she is absolutely right or the opposing party seems impossible? Here are 5 reasons: First, it can help save litigation expenses and prevent the estate from being dissipated by legal fees. Due to court cutbacks, it takes longer to obtain hearings and cases can last for years. Second, it maintains our clients' confidentiality and keeps fights out of the public eye. In litigation, court filings are public where mediation can allow the records to be confidential. Third, it can preserve family relationships or prevent family relationships from deteriorating further.Mediation can address underlying family conflicts and take into account emotions and family dynamics in considering legal obligations and rights. 

Fourth, it allows us to obtain certainty and ensure tax savings which may not happen in litigation when a judge is deciding the case. Fifth, it allows us to use creative solutions that may not be typical legal remedies that a court can apply. In mediation we can air and acknowledge complicated emotional issues that were preventing early settlement and we can develop flexible solutions to accommodate different interests. 

Here are some questions I ask clients when we are considering mediation. This is based on cases where we have agreed to mediate conflicts in order to preserve family wealth and promote family relationships. 

• Is the conflict ripe for mediation and are the parties motivated? Mediation should occur when planning and decision making cannot continue because of unresolved conflict and the parties understand that opportunities are being lost or extra expenses and legal fees are being incurred. Mediation usually happens after we have hit a wall in the settlement process where having an experienced third party mediator can make a difference. Mediation can occur before, during, or after court proceedings.

• What are the goals for mediation? I help clients identify the goals in specific terms. Do you want the best possible monetary outcome, family peace, specific property, preservation of assets or other goals? 

• Who should participate in the mediation?  Probate cases usually involve a high degree of emotionality and numerous parties. There may be multiple decision makers (spouses, children, advisors, and significant others). If someone can veto the agreement or is necessary for it to work, consider whether that person should be at the mediation.

• Are you and the lawyers prepared?  Thorough preparation is often the key to success. It is important to have researched the underlying facts and the law with respect to the outstanding issues before going to mediation. Sometimes the key to successful resolution may lie in creative use of the tax laws. I also spend time identifying the strengths and weaknesses of both sides' positions. I usually prepare a confidential Settlement Brief providing the mediator with necessary information and background information. I will also highlight my clients' strengths and give the mediator the other sides' weaknesses. I summarize the history of prior settlement attempts and offers. I often provide the mediator with copies of relevant cases and/or statutes. Sometimes I will present expert or financial reports to help the mediator understand the issues. 

• Who should be the mediator? Mediators have different styles and approaches. Will the parties respect a former probate judge? Do the personalities and situation require an authoritative mediator to evaluates alternatives and suggests outcomes? Or would the parties respond better to a more facilitative mediator who helps the parties work out their own agreement?

• Do we have a negotiation plan? In order to be assured of getting what my client wants most, I help prioritize my client's interests, prepare a general strategy and consider which concessions might help achieve the identified goals. It sometimes takes more than 1 session to reach agreements and my client needs to be prepared to be patient and keep emotions in check and not simply issue ultimatums. Some mediations are marathons and not sprints. 

• Can we bring our proposed settlement agreement to the mediation? If I have cases where clients know what specific wording or stipulations are needed, I will bring a draft agreement, release or settlement on a memory device or laptop to the mediation to be revised as needed. Careful drafting is required for a mediated agreement to be enforceable and it is best to obtain the signatures the day of the mediation to avoid future disputes or someone changing their mind. 

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221. The firm website is www.moravecslaw.com

The firm has two offices and consultations and meetings can be held at either office. There is ample free parking adjacent to the firm's offices.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.
The San Fernando Valley office is located at 4605 Lankershim Boulevard, Suite 718, North Hollywood, California 91602-1878.

Legal Skirmishes Over Heiress Huguette Clark's $400-Million Estate Comes Down To A Battle of Wills — Two of Them.

Estate and probate lawyers a battle taking place in New York regarding the Estate of Huguette Clark. Huguette Clark, who had significant California property, died at the age of 104 in May 2011 in the New York City hospital where she had lived for at least 20 years. An MSNBC investigation also plays a role in this case. Her estate is estimated to be worth over $400 million.

In her 2005 will, she left large sums to a few people — including about $34 million to her nurse caretaker of 20 years — and asked that her Santa Barbara mansion be turned into an art museum. On Monday, however, a second will surfaced in court documents. It was signed just six weeks before the will that was previously made public and didn't mention anything about a museum. Instead, it left everything to 21 distant relatives who are now accusing Clark's longtime attorney and accountant of "plundering" her holdings.

That's a marked contrast from the later will, which specified that no money go to her family members, with whom she had "minimum contacts" over the years. What caused such a dramatic change of heart in such a short period is unknown. But in a filing with New York Surrogate's Court, the relatives' attorney, John R. Morken, wrote of "alleged deceit, undue influence and exploitation of a very elderly and extraordinarily wealthy woman at the hands of two professionals who, with the help of certain others, took control of her life, isolated her from family, and ultimately stripped her of her free will, as well as millions of dollars."

A group of family members made the same charges last year but failed to convince a New York judge that attorney Wallace Bock and accountant Irving H. Kamsler were helping themselves to Clark's fortune. However, after a series of reports on msnbc.com, New York prosecutors opened an investigation that is ongoing, according to Morken. Attorneys for both men have said they did nothing wrong and always acted in Clark's best interest.

But relatives, who said Bock kept them from visiting their great-aunt, were skeptical — and not just for financial reasons, according to Morken. "Even of greater concern to them is the family's heritage," he wrote. Huguette Clark's father was copper baron and former Montana Sen. William Andrews Clark. She grew up in privilege and at her death still owned apartments in one of Fifth Avenue's most elegant buildings, a large home in Connecticut, artworks that included a painting from Monet's "Water Lilies" series, a collection of French dolls, and a 23-acre bluff-top estate in Santa Barbara called Bellosguardo —Italian for "beautiful view."

By all accounts, it had been at least 50 years since she last set foot in Bellosguardo, a home with formal gardens that was maintained by a live-in manager. In her more recent will, she directed that a foundation be set up to run the new museum, with Bock and Kamsler operating it. That arrangement, the relatives said Monday, would allow the pair unfettered access to much of Clark's fortune. Even as Clark's executors, the men would make more than $20 million in commissions, according to Morken. Clark outlived her six brothers and sisters. She was divorced in 1930 and had no children.

Settlement of the conflict over her estate is expected to take several years. Although most estates are not worth this amount, once family disputes occur and litigation begins, it can take anywhere from months to years to settle all the claims. The trust will have its own attorney, the beneficiaries will have their attorneys, and the relatives presenting the second will and challenging the first will also have a set of attorneys. And what happens if the beneficiaries do not agree? More delays. Probate litigation is a very sensitive type of litigation and the emotions tend to run high.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person) regarding your own situation, you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.

With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

The San Fernando Valley office is located at 4605 Lankershim Boulevard, Suite 718, North Hollywood, California 91602-1878.

Health Care Directives - Recommended New Yorker Article On Hospice Care: "Letting Go: What Should Medicine Do When It Can't Save Your Life?

One of my favorite physician writers is Atul Gatwande, a practicing physician in Boston. He recently wrote a 15-page article in the New Yorker titled titled "Letting Go: What Should Medicine Do When It Can't Save Your Life?" which focuses on the use and application of hospice care in terminal patients regardless of disease and/or condition.

In creating trusts, drafting estate plans and health care directives, we encourage our clients to think about these end-of-life issues. What would you do if you are hit with news of a terminal illness? How do you think you and your family will react as treatment choices are made or when non-treatment is chosen? How should hospice/palliative care be defined? Do you want to incorporate your wishes on these subjects into your health care directive or estate planning?

If you are given fewer than 90 days to live, do you want to "fight death" as long as possible? It may be impossible to know how you really feel about these issues unless you or another family member have gone through it. This article addresses the fact that medical insurance (including Medicare) does not pay for doctors to have extensive conversations with the family about the options and whether "fighting death" at all costs for a month or longer is worth it and how such a fight could affect the quality of life in those last months.

In our practice, we see that in our society we are often not good at helping people sort out what is most important to them when they are facing a terminal illness and helping them achieve it. This is why advance health care directives have become popular in estate planning.

In our practice, the Advance Health Care Directive identifies the individuals that you desire to act for you if you become unable to make medical decisions for yourself. The most common decision involves when, and under what circumstances, extraordinary measures should be used to prolong life. There are also sections of the Advanced Health Care Directive which deal with whether or not you desire to be an organ donor. This is part of our basic estate plan package.

It is an excellent article and it will help you think about these issues,

Hospice medical care for dying patients: newyorker.com

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.

He focuses his practice on Estate Planning, Trust and Probate Administration, Beneficiary and Trustee Representation, Probate Litigation, Tax Law, and Nonprofit Law. He represents clients throughout Southern California and his offices are conveniently located for clients in the Los Angeles, Santa Barbara, Orange, Riverside and San Bernardino Counties.

With respect to estate planning and probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles estate attorneys and Los Angeles probate attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

The San Fernando Valley office is located at 4605 Lankershim Boulevard, Suite 718, North Hollywood, California 91602-1878.

Why Do I Need A Written Estate Plan?

In California, everyone has an estate plan even if they have no Will or Trust. That is because California law provides a detailed scheme of who is entitled to your property when you die. However, very few people would be happy with the results under the law because the law does not take into account an individual's wishes or family situation.

Regardless of who you are, how much money you have, who you want to inherit your estate or when you want them to receive distribution, your wishes are likely very different from the basic disposition provided under California state statutes. For instance, if both spouses ultimately die from a common accident but one outlives the other, even for a short time, all of the property of both spouses could go to the survivor's family rather than be split between the heirs of both spouses.

Having no estate plan can also be a problem for those with minor children. For example, if a couple with children died, California law provides that the children would be entitled to full ownership of the property, including any businesses, at age 18. Most people consider age 18 far too young an age to receive a full inheritance.

However, with a well thought out Estate Plan you can make sure that your children are well cared for (food, clothing and schooling) by a responsible adult trustee and that your minor children receive their inheritance at an age when they are more mature and less likely to blow through their inheritance on frivolous items.

Proper estate planning is important as a means of avoiding Probate Court. When you die without a Will or with a Will but no Trust, your heirs are required to bring the matter to Probate Court. Until such time as someone is appointed by the Probate Court, your assets are frozen and your heirs are unable to access your accounts to pay any bills and expenses.

In addition to being costly, Probate Court is time consuming and many acts require Probate Court approval. Even the most basic of estates can take over one year to close. Moreover, all documents filed in Probate Court are fully accessible by the public.

Another pitfall with the no estate plan philosophy is that lack of clarity most often breeds disputes and heirs tend to fight over the smallest of estates. These disputes are expensive to litigate and the fees incurred by the estate come from the estate's assets.

A properly drafted Will and Trust can avoid both the application of California's default provisions, as well as unnecessary expenses and the inconveniences of Probate Court. Not only does this keep the estate administration private, but it ensures that your wishes are followed and done so in a timely fashion.

We encourage you to contact an experienced estate planning lawyer to create an estate plan or to review your existing estate plan and determine whether changes should be made. For a complimentary 30 minute telephonic or in-person consultation, you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210.

Most sophisticated estate planning attorneys, such as our firm, quote a flat fee and there are no products being sold or conflicts of interest in advising you on the best estate plan for you and your family. Refer to my prior post on "What Does Estate Planning Cost?" for information about our firm's flat fees for estate plans.

Posted by Henry J. Moravec, III. Henry (Hank) Moravec is a partner at Moravecs, A Professional Law Corporation, and is a very experienced Los Angeles estate planning attorney, Los Angeles trust attorney and Los Angeles probate attorney. He has more than 20 years' experience in estate planning and is extremely dedicated to his clients and helping them create a plan that is tailored to their wishes, finances, helps avoid probate and takes into account their families' unique situation.

The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive #17, San Marino, CA 91108. There is ample free parking adjacent to the firm's office.
The firm is a boutique estates and trust law practice specializing only in Estate Planning, Probate, Trust Administration, Beneficiary and Trustee Representation, Tax Law, and Nonprofit Law. The office is located in San Marino, California, a suburb of Los Angeles in the San Gabriel area located 20 minutes from downtown Los Angeles. The firm represents clients throughout California and its attorneys appears in probate court throughout Southern California

WSJ Article On How Estate Tax Exemption Could Mean There's A Trap In The Bypass Trust Or Credit Shelter Provision Of Your Will

On October 15, 2009, the Wall Street Journal had an article entitled "Is There A Trap Lurking In The Language Of Your Will?" The article is a good reminder as to why it is critical to have your will reviewed every few years, especially if there is a significant event in your life or the law changes.

Why could there be a "trap" in your will? Since 2001, the federal estate tax exemption has stepped up from $675,000 to its current level of $3.5 million per individual or, with planning, $7 million per couple. Thus, people who have not updated their wills could have some unintended consequences if this exemption increase has not been taken into consideration.

For example, in many wills and trusts, lawyers often put a "credit shelter" or "bypass" trust provision into the will of each partner in a married couple. This allows the couple to take full advantage of both individual exemptions. At the death of the first spouse, some assets go into a bypass trust that the other can draw on if necessary. These assets escape tax at the second spouse's death and pass directly to heirs.

As the WSJ article explains, when the estate tax exemption was $2 million and below, bypass trusts were especially important to those who were affluent but not hugely wealthy. Used properly, they helped shelter the greater part of a couple's assets from estate tax. If each spouse instead left all his or her assets outright to the other, in many cases the value of one exemption was lost and unnecessary taxes had to be paid upon the death of the second spouse.

The current trap mainly affects those couples who benefited most from bypass trusts in the past—those with up to, say, $4 million in assets. The problem lies in the wording of many wills drafted even a few years ago, which often directs that the "full amount" of the estate tax exemption go into the bypass trust when the first spouse dies. If the language of the will hasn't changed while the exemption has grown, the bulk of a couple's assets could in some cases wind up in a bypass trust after the death of the first spouse, leaving the survivor with little or nothing outright.

For example: A couple with $4.5 million of assets made wills in 2002, when the exemption was $1 million. At the time, the wife's share consisted of their $750,000 home and $250,000 in other assets, with the rest belonging to her husband. The will's language directs the full exemption amount into a trust at his death, with the income to the spouse for life and the remainder to heirs—which, if he died in 2002, meant $1 million would go into the bypass trust, and $2.5 million would transfer to his wife. But if he dies in 2009 or 2010—assuming the exemption remains at $3.5 million—she would get nothing outright. All of his assets would go directly to the bypass trust.

One New York estate planning attorney was quoted in the article discussing a bad family situation where the husband signed a will in 2000 leaving the "full exemption" amount in trust for his children and the rest of his estate to his wife, thinking this would split his $2 million estate down the middle. When he died in 2008 without updating the will, the exemption had risen to $2 million, so the bulk of the estate bypassed the wife. She was left only with the house and some cash of her own.

As the article notes, writing a will or trust is not something you do once, place in a safety deposit box and then forget about it. It needs to be reviewed when the law changes, when there are life changes and every few years to ensure it reflects your current intentions and plans. Updating your will and trust does not have to be expensive and can save you and your family from facing unintended consequences.

Posted by Henry Moravec, III. Any questions or comments should be directed to: hm@moravecslaw.com or (626) 793-3210. The firm website is http://www.moravecslaw.com/

What Happened To NFL Player Sean Taylor's Mother When He Died Without A Will And Left Entire $5.7 Million Estate To 18 Month Old Daughter?

An article in the September 30, 2009 Washington Post regarding the death of young NFL Redskin player Sean Taylor reminds us what can happen when someone dies without a will or any type of estate plan.

Sean Taylor was a first-round pick in the 2004 draft, signed a seven-year $18 million contract with the Washington Redskins, and became the team's starting free safety after the third game of the season. He quickly gained a reputation as an outstanding athlete, and in 2006 was named to the 2007 Pro Bowl. He was young and probably did not think about estate planning.

Sean Taylor helped support his mother Donna Junor, and bought her a home. On November 26, 2007, a terrible tragedy happened when an armed intruder broke into Taylor's Florida home and shot the football player in his leg. The bullet struck his femoral artery and, despite several hours of surgery, Taylor died at the hospital on November 27. He never regained consciousness.

Taylor died without a will, and Taylor was not married. Most of Taylor's $5.8 million estate went to his 18-month old daughter (now 3) who lives with her mother. His father took possession of the contents of a $328,000 joint account that he shared with the football player, and Taylor's sister received the proceeds of a $650,000 life insurance policy. His mother, however, received nothing. Nor did his grandmother, great-grandmother, two of his half-siblings or any of the cousins or relatives who had grown accustomed to his financial assistance.

According to the article, Taylor's mother was left with possessions that carry costs and fees that she says exceed her income as a substitute teacher since she cannot find a full-time job. She could not pay the real-estate taxes last year on the townhouse she bought in 2005 with the $222,000 her son had given her. Another tax bill is due at the end of November. Taylor's mother said she doesn't have any of his memorabilia, either. All of it either was auctioned to raise money for the estate, or, she says, collected by Taylor's father or the mother of his daughter.

Taylor sister was quoted in the article stating that she understood the frustration over the way her late brother's assets were distributed since she thought he would have wanted it to be different. The article can be found at:

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/29/AR2009092902051.html

Attorney Comment: The article painted a picture of financial hardship for the mother and it is hard to say whether anyone should feel sorry for her or not. Nevertheless, the article is a reminder of the necessity for planning especially when there are assets and family members who you want to provide for in the future. It certainly is not wise for the daughter to have access to the entire estate when she turns 18 years' old. Nor does it seem like it would have been Taylor's plan to leave his mother nothing from his estate.

However, it is clear that Taylor could have better protected himself, his daughter, his mother, his family, and his assets by making an investment in his estate plan before his untimely death. It is a reminder for all of us to take the time and energy to engage in estate planning.

Posted by Henry Moravec, III. Any questions or comments should be directed to: hm@moravecslaw.com or (626) 793-3210. The firm website is http://www.moravecslaw.com/

Religious Preference Clause: Illinois Supreme Court Rules In Favor Of Couple's Trust That Disinherits Grandchildren Who Marry Non-Jews

Chicago dentist Max Feinberg died in 1986. Prior to his death, he had a standard pourover will and revocable living trust. The trust had an unusual catch: His grandchildren wouldn't inherit a penny if they married someone who wasn't Jewish or whose non-Jewish spouse did not convert within one year. We could call this a "religious preference clause."

More specifically, the trust provided that upon his death, his assets would be split into a standard credit shelter trust and a marital deduction trust. Max's widow, Erla, was the lifetime income beneficiary of both trusts, and had a limited right to withdraw principal.

Upon Erla's death, the property would be distributed to Max's descendants. Fifty percent of the trust estate was to be held in further, separate trusts for Max's grandchildren during their lifetime on a per stirpital basis. The trust provided that any descendant who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year would be disinherited.

Feinberg's will gave control of the trusts to his wife, Erla. When she died and the grandchildren were to inherit $250,000 each, she followed her husband's wishes and imposed the same restrictions. By that time, four of the five grandchildren had married gentiles. Erla Feinberg's death triggered a series of disputes. One disinherited granddaughter had argued it was improper for a will to set up conditions that promote religious intolerance in people's marriage decisions or even encouraged couples to divorce.

On September 24, 2009, the Illinois Supreme Court unanimously ruled that Feinberg and his wife were within their rights to disinherit any grandchildren who married outside the faith as long as the method of doing so did not encourage divorce. The court's ruling was based partly on technicalities in the way this estate was arranged. The court did not provide a broad ruling on whether similar religious restrictions would be valid under other circumstances.

The state Supreme Court based much of its decision on the fact that Erla Feinberg's will awarded set amounts of money based on the marriage status of the grandchildren at the time of her 2003 death — either they qualified for the money or they didn't. The court said that meant the will didn't try to control what the grandchildren would do in the future and didn't offer any incentive for a particular couple to divorce.

A will that provided money year after year if the heir did not marry a gentile might not pass muster, the court suggested. That's because it would amount to a dead man trying to control actions for years to come and would encourage divorces so that people could claim an inheritance.

"Equal protection does not require that all children be treated equally . . . and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions," Justice Rita Garman wrote in a ruling that overturned decisions by two lower courts.

A copy of this interesting decision, In Re Estate of Max Feinberg, can be found at: http://www.state.il.us/court/OPINIONS/SupremeCourt/2009/September/106982.pdf

Posted by Henry Moravec, III. Any questions or comments should be directed to: hm@moravecslaw.com or (626) 793-3210. The firm website is http://www.moravecslaw.com/

What Happens When Someone Dies With A Will, But No Trust?

Yesterday I addressed the issue of "What Happens When Someone Dies Without A Will Or Trust?" Today, the question is: What Happens When Someone Dies With A Will, But No Trust?

If the Decedent has a Will but no Trust, even if Trust terms are spelled out in the Will, the Will must be administered through the Probate Court (unless the Small Estate exception discussed above applies). The terms of the Will govern the division of the estate. The Will usually dictates who will be the Executor (the person in charge) of the Estate.

If an Executor is not named, is deceased or is unwilling to serve, the nearest living blood relative will have the right to be named as Executor.

The Executor will have to file the original Will with Probate Court as well as a Petition for Probate to begin the proceedings.

Posted by Henry Moravec, III. Any questions or comments should be directed to: hm@moravecslaw.com or (626) 793-3210. The firm website is http://www.moravecslaw.com/

What Happens When Someone Dies Without A Will Or Trust?

In California, everyone has an estate plan even if they have no Will or Trust. That is because California law provides a set of detailed rules which determine who is entitled to your property when you die.

If the Decedent dies without a Will or a Trust what happens next depends on the facts of each particular case. If the Decedent’s estate is worth less than $100,000.00 and does not consist of real property (considered a "Small Estate”) no formal probate court proceeding is required and the heirs may simply collect the Estate through the use of a declaration (a “Declaration of Small Estate”). Most banks, as well as the DMV, will accept a Declaration of Small Estate to obtain access to the Decedent’s accounts and/or property.

For Los Angeles County, you can obtain a Declaration of Small Estate from the following court website: www.lasuperiorcourt.org/probate/pdf/TransferForm.pdf

A second possibility is that all or a portion of the Decedent’s estate, whether real or personal, passes by contract. Examples of property passing "by contract” include assets held in joint tenancy, assets held in a “pay on death account” or, as in the case of an insurance policy or retirement account, assets payable to a designated beneficiary. There is no monetary limit on the size of an estate which could pass by contract. However, if neither of the first two scenarios are applicable (or if the heirs wish to take advantage of a formal proceeding to negotiate with the Decedents’ creditors) an action will need to be filed in the special court which administers matters concerning trusts and decedent’s estates, known as the "Probate Court.”

If a Probate proceeding is required, someone, usually the nearest living blood relative, will have to file a Petition for Probate with the Probate Court to begin the proceedings. Essentially, the Probate Court is set up to help the relatives of the Decedent determine who gets the estate. Because, in this scenario, the Decedent left no Will or Trust, the estate goes to the Decedent’s heirs at law (nearest living relatives in order of lineage). The division of assets can be found in Probate Code Section 6401, which can be viewed by following the link to the Probate Code at: www.leginfo.ca.gov/calaw.html

Because California is a community property state, all community property (not otherwise disposed of by Will) goes to the surviving spouse. However, separate property can go all to the surviving spouse or be split between the surviving spouse and children. While you can represent the estate in Probate Court on your own, it is advisable that you to retain an experienced probate attorney.

There are a vast array of rules and deadlines that may be extremely complicated for the average person to navigate. Both the Probate Fees and Attorneys’ Fees are set by law and are based on the value of the estate that goes through Probate Court.

Posted by Henry (Hank) Moravec, III, a partner at Moravecs, Varga and Mooney. This firm consists solely of attorneys who practice probate, estate and tax law in the Los Angeles area.  Hank Moravec focuses his practice on Trust and Probate Administration, Estate Planning, Beneficiary and Trustee Representation, Tax Law, and Nonprofit Law. Any questions or comments regarding this post or your own situation should be directed to: hm@moravecslaw.com or (626) 793-3210.

The office is located in San Marino, California, a suburb of Los Angeles in the San Gabriel area. The firm, however, represents clients throughout California and the office is easily accessible to Los Angeles, Orange, Santa Barbara, Riverside, and San Bernardino Counties. San Marino is a short drive from Los Angeles, Pasadena, Arcadia, Alhambra, Glendale, Burbank and the surrounding cities.

The firm website is: www.moravecslaw.com