California Tax Attorney Blog

It may be difficult for some to proceed in court without an attorney familiar with California Probate law when someone dies in Los Angeles or elsewhere in California and leaves property subject to probate.

In California, only a licensed attorney can give legal advice. If you don't understand any information in this blog or if you have trouble filling out any of the forms located here, see an attorney for help.

The Los Angeles Superior Court has a self-help website. The web site provides help with Probate matters in general and pays special attento to areas where people represent themselves without an attorney to help them. The self-help site is not supposed to be a do-it-yourself guide and is instead intended to help you help yourself through the court system and probate matters.

The Los Angeles

Probate Guardianship/Conservatorship Information Sheet

Glossary of Probate Terms

Conservatorship

Guardianship

Creditor's Claims

Transfer Of Small Estates Without Probate

Estate Planning

Probate Forms Packets

Links To Other Probate Self-Help Web Sites

Still need help? Call a qualified probate attorney. In Los Angeles call Mitchell A. Port at (310) 559-5259.

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When opening a California probate (in Los Angeles Superiour Court, for example) believing that the will is lost, there's a rebuttable presumption that it was destroyed. What this means is that the court will presume that the the person who died destroyed the will.

But, to probate a lost will you may introduce evidence that the will was not destroyed. The sort of evidence that is allowed must satisfy the probate court that the will wasn't destroyed. If the evidence suggests that the will wasn't destroyed, then it will be admitted to probate. For example, you look for a copy of the will and any reason as to why that copy should not be valid.

California Probate Code 6124 says that: “If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.”

Let's assume there's no copy, and that the California will is just lost. Most likely what's going to happen is the property will probably pass intestate, meaning it will go equally to whomever the natural objects of the bounty are, the natural heirs or lineal descendants.

For probate help, call Mitchell A. Port at (310) 559-5259.

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With a play on words, the Wall Street Journal recently published an article entitled "Deciding if Your Kid is Trust-Worthy". Estate planners in California often ask clients the same question since having a living trust may make sense depending on, for instance, whether their children are worthy of getting property when they are young or at an older age.

California Wills, living trusts, durable powers of attorney for property management and the advance health care directive are usually prepared by lawyers. There are many forms available for free online but it is often inadvisable to use them.

Speak with an estate planning attorney about your own situation. Call Mitchell A. Port at 310.559.5259.

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To submit an Offer In Compromise (OIC) with the Internal Revenue Service in order to pay pennies on the dollar, a nonrefundable 20% downpayment is required. Combined with a very low acceptance rate by the Internal Revenue Service of OICs, the downpayment has the effect of discouraging people from applying for an Offer.

A Congressional bill was recently introduced the title to which tells it all: “Repeal of the Partial Payment Requirement on Submissions of Offers in Compromise”. If this is enacted into law, the struggle with your tax debts may be a bit easier.

If you have a tax problem and need a tax lawyer, call Mitchell A. Port at (310) 559-5259.

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Domestic partners in California whose property was reassessed between January 1, 2000 and January 1, 2006 because of a change in ownership or the death of the owner can apply for an exclusion. Go to the Los Angeles county tax assessor's website and apply for help before June 30, 2009.

The Los Angeles Times ran a good article discussing this in more detail.

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Estate planning for those of us in Los Angeles and throughout California where property values have been significantly impacted as a result of the recent economic slump can use this link to a great article from Money magazine on rethinking your estate planning options, given the uncertainty of future tax rates and exemptions.

Discuss your will, living trust and other estate planning needs with a qualified tax attorney. Call Mitchell A. Port at (310) 559-5259.

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How much does a probate in California cost when more than one attorney is involved with the same client?

The fee is calculated based on a percentage as follows:

4% of the first $100,000 of probate property pays a fee of $4,000
3% of the next $100,000 of probate property pays a fee of $3,000
2% of the next $800,000 of probate property pays a fee of $16,000
1% of the next $9,000,000,000 of probate property pays a fee of $90,000
0.5% of the next $15,000,000 pays a fee of $75,000

If the estate exceeds $25,000,000 in value, the court will determine the amount of the fee for the excess.

Using this fee structure, an estate worth $1 million pays a fee of $23,000 ($4,000 plus $3,000 plus $16,000).

When more than one attorney is involved for the same estate, the fee is split between the lawyers. For example, if three attorneys handled the same $1 million estate, the maximum statutory fee is $23,000 which is divided among the lawyers in any way that they agree.

When an executor fires the first attorney during the probate proceeding, the next attorney has to negotiate his share of the statutory fee with the first lawyer. The stage of the probate proceeding at which this occurs will impact the discussion between the attorneys. If the new attorney is hired by the executor late in the proceeding, his or her fees negotiated with the prior attorneys probably will be relatively small; it may be difficult to hire a new attorney at this stage since the fee may be too small.

Speak with a competent California probate lawyer about this. Call Mitchell A. Port at (310) 559-5259.

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The Internal Revenue Service has filed a $819,848 federal tax lien against Sen. John Kerry's 2004 presidential campaign. The campaign says the tax return was filed and lost by the IRS while the IRS says no tax return was ever filed. Sen. Kerry's office blamed IRS clerical error for the claim and said his campaign owes no penalties.

The liability described in the tax lien is based on Internal Revenue Code Section 6721 entitled "Failure to File Correct Information Returns".

The Massachusetts Democrat said the IRS mishandled payroll tax forms that he said were correctly filed by his campaign in 2005.

Avoid this tax problem. Speak with a qualified tax attorney in Los Angeles from anywhere in the U.S. about your situation. Call Mitchell A. Port at (310) 559-5259.

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Filing a past due return may not be as difficult as you think. Los Angeles, California taxpayers should file all tax returns that are due, regardless of whether or not full payment can be made with the return. Same is true for California tax returns.

Whether paying taxes with a timely filed tax return, or filing late and paying taxes late after receiving a bill from the IRS (and the bill is correct), LA's taxpayers are encouraged to pay the taxes they owe in full.

Prevent the IRS from levying bank accounts, wages, or other income, or taking other assets. Prevent the IRS from filing a Notice of Federal Tax Lien that may have a detrimental effect on your credit standing.

If you don't file your tax return, the IRS will file a substitute return for you, which will not include any additional exemptions or expenses you may be entitled to and may overstate your real tax liability. Once the tax is assessed the IRS will start the collection process, which can include placing a levy on wages or bank accounts or filing a federal tax lien against your property.

Call a tax professional - call attorney Mitchell A. Port.

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Get Free Help.

The IRS offers free tax assistance in person, by telephone, computer and by fax. The IRS can assist taxpayers with obtaining forms, publications and answers to a wide range of tax questions. The IRS can also help find free tax preparation for those who qualify.

In Person

Taxpayers needing face-to-face help solving individual or business tax problems can get help every business day in every IRS Taxpayer Assistance Center.

By Phone

Call the toll-free customer service line at 1-800-829-1040.

Use Your Computer

Through the Internet, you can access a wealth of free tax information on the IRS Web site. Taxpayers can check out links such as Forms and Publications to download necessary forms, instructions or publications; get the FAQs (Frequently Asked Questions) to get answers to questions

By Fax

You can receive faxed forms and publications by calling 1-703-368-9694 (not a toll-free call). Simply follow the directions from the prompts.

Be careful when providing the IRS with your information while you are trying to information from them. Hire a tax professional if you are concerned you might inadvertantly disclose information you may not want the IRS to have at this time.

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There are jobs in California.

The IRS is recruiting hundreds of Internal Revenue Agents with a minimum 30 hours of college-level accounting coursework for openings around the country. To apply for these and other IRS jobs, go to the IRS job search on USAJOBS.

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California, like many states, abides by the contractual beneficiary designation made on your IRA and life insurance. When you designate a specific beneficiary, then the property will go to that person without probate.

Sometimes, however, the beneficiary you designate may not be the actual person you wish to receive the IRA or life insurance. In one particular situation, a woman designated her sister as the beneficiary before the woman was married and never changed the beneficiary designation to name her husband after she was married. As a result, when the husband tried to claim the money, neither the IRA administrator nor the insurance company would pay him since he was not the designated beneficiary despite more than two decades of marriage. Here’s the story.

Similarly, if an IRA or insurance beneficiary is named and dies before the IRA owner or the insured, and if there is no secondary beneficiary named, then those assets must go through a probate in California before the money is distributed. So, when certain items of property ordinarily avoid probate because the law of contracts usually applies, California probate is required when the beneficiary designation no longer works.

Avoid probate in California. Consult with an estate planning attorney – call Mitchell A. Port at (310) 559-5259.

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