Legal Articles

INTESTACY LETS CALIFORNIA PICK YOUR HEIRS Intestacy is California’s Will. Without a will or trust the intestacy laws of California intervene. Intestacy law identifies who is the next of kin to inherit. Intestacy is by class. The surviving spouse is the default next of kin. If there is no surviving spouse, then the children of […]

DISPOSITION OF REMAINS IN CALIFORNIA The right to control the disposition of the remains of a deceased is found in California’s Health and Safety Code under the section titled appropriately enough, “Dead Bodies.” The person is either identified in the deceased’s power of attorney for health care or by California’s default plan. The agent in […]

Cost of Attorney Fees to Probate a Will in California In California, attorney fees for ordinary services provided in probate court are set by law and are referred to as statutory fees. The amount of statutory fees depends on the dollar amount of assets in the decedent’s estate. The statutory amount does not include extraordinary […]

Trustee Duties when the Settlor of a California Trust Becomes Incompetent In California, trusts are created to avoid probate and to avoid direct distribution of assets to minors or children with special needs. For the top ten-percent, trusts are also used to minimize or reduce estate taxes. A trust has three actors: the creator, who […]

Successor Trustee’s Duties to Beneficiaries of a California Trust on Settlor’s Death. On the death of the Settlor, persons identified in the trust become beneficiaries and a successor trustee is identified. These new beneficiaries receive access to the assets of the trust as directed in the trust. The successor trustee has fiduciary duties to these […]

Surprise and Peril Await When Adding a Co-owner of Real Property in California  A sole owner of real property in California often avoids probate by adding a co-owner in joint tenancy. This post by Mark W. Bidwell identifies the perils and surprises of joint tenant owners. Adding a co-owner opens up the possibilities of many […]

How an Individual Should Own a Home in California How a California home is owned determines how it will transfer on the death of the owner. This post explores the options and the hazards for an individual homeowner. In the process of purchasing real property in California, the buyer is asked “how do you want […]

How Co-Owners of California Real Property Avoid Probate Without a Trust California real property in joint tenancy avoids probate on the death of the first co-owner of real property. But the surviving owner must have a trust to avoid probate. Probate is a set of California laws that determine who inherits and how. Probate requires […]

GENERAL CHARACTERISTICS OF A CORPORATION Separate Existence. A corporation through legal fiction has it own legal existence and with that existence come economic rights. Some of those rights are: the right too enter into a contract; due process protection of corporate assets against state and federal government takings; freedom of commercial speech in the form […]

TRADE MARKS AND SERVICE MARKS If you use a slogan or logo, consider registering your company’s marks, both to protect your investment in the mark and to prevent unintentional violations of marks of other businesses. A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs which identifies […]

CALIFORNIA’S DEFAULT PLAN TO IDENTIFY HEIRS Without planning ahead, the probate administration and intestacy laws of California apply. Intestacy law identifies who are the “next of kin” to inherit. Intestacy First, who is not next-of-kin. Relatives by marriage are not “next of kin.” Next of kin are blood relatives and adoptees. As a general rule, […]

PROBATE ADMINISTRATION FROM BEGINNING TO END Probate administration begins with the filing of a petition for the court to appoint a personal representative of the decedent. If the proposed appointee is nominated in the will, the petition is for the appointment of an “executor.” If the proposed appointee is not named in the will, the […]

POST DEATH TRANSFER OF ASSETS Assets transfer on death the easy way and the hard way. The hard way requires assistance of the Superior Court of California. Easy transfers require little planning and avoid the court. Retirement accounts and life insurance policies are the easiest. These assets transfer by designated beneficiary. The company who holds […]

CALIFORNIA’S DEFAULT PLAN FOR INCAPACITY (CONSERVATORSHIP) In California, all adults are considered capable of handling their own affairs. A Conservatorship is a court case where a judge determines you are no longer capable and appoints a responsible person to care for you or manage your finances. There are a number of people who can file […]

RETIREMENT ACCOUNTS, REQUIRED MINIMUM DISTRIBUTIONS AND TRUSTS The beauty of retirement accounts such as 401ks and IRAs, is they allow for asset appreciation that is not taxed until money is taken out. But the federal government does not want this investment to exist forever, to never be taxed. The rule of an annual minimum distribution […]

REVOCABLE TRUSTS In California a trust is often referred to as “revocable trust.” A revocable trust is a trust that the person who creates it can revoke during that person’s lifetime. Revocation restores the person to where he or she was before the trust was created. A revocable trust can also be amended or restated. […]

SUCCESSOR TRUSTEE DUTIES After the death of the settlor the successor trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration. This duty is met with notice and account. The first notice is mandatory under California law and is referred to as “notification by trustee.” Notification […]

FUNDING A TRUST Trusts provide for the post death transfer of assets at a minimum cost and effort.  But a trust cannot just be created, it must also be “funded.” An unfunded trust does not avoid probate. An unfunded trust is a common and very costly mistake. “Funding a trust” is a change in how […]

PROS AND CONS OF LIFETIME GIFTS V DEATH TRANSFERS OF REAL PROPERTY In anticipation of death, either imminent or far into the future, an owner of California real property can either gift while living the property or transfer on death. This article looks at the pros and cons of the tax, control and Medi-Cal eligibility […]

DISPOSITION OF REMAINS IN CALIFORNIA The right to control the disposition of the remains of a deceased is found in California’s Health and Safety Code under the section titled appropriately enough, “Dead Bodies.” The person is either identified in the deceased’s power of attorney for health care or by California’s default plan. The agent in […]

HOW A SURVIVING CO-OWNER AVOIDS PROBATE OF REAL PROPERTY IN CALIFORNIA Probate is a set of rules under California law that direct how real property transfers from a decedent to heirs. Probate requires two hearings and three court orders. Time involved is a minimum of one year. Probate is not cheap. For a surviving co-owner […]

HOW TO TAKE TITLE TO CALIFORNIA REAL ESTATE AT TIME OF PURCHASE Options to own real property in California are; in name only, as a co-owner, in trust, or as a business entity. The major distinction between these options is, how does the property transfer to heirs on the death of the real property owner? In […]

THREE TIERS OF CALIFORNIA PROPERTY Real property owned by one person ends up in probate. Probate is a set of laws the California courts follow to transfer real property from a decedent to his or her heirs. California has three tiers of court involvement based on the market value of the real property. The appraised […]

TRUSTS A trust is a plan. The plan avoids probate and provides for the orderly transfer of assets to heirs at a minimum cost, time and effort. In California a trust is often referred to as “revocable trust.” A revocable trust is a trust that the person who creates it, generally called the settlor, can […]