California Tax Attorney Blog

Sometimes probate attorneys in California will provide free forms just for the asking. One free form is the California Advance Health Care Directive found in the Probate Code under Sections 4700-4701. The Advance Health Care Directive used to be known as a living will, a pull-the-plug form, a right-to-die form, DNR, and the end of life form.

The form is free at this link.

Other articles in this blog have dealt with related issues such as the use of the Directive for Older Adults With Diminished Capacity, estate planning through the use of Wills, Living Trusts, Powers Of Attorney, Health Care Directives, Revocation Of California's Advance Health Care Directive, and finally the oft asked-about topic concerning Advance Health Care Directive For Your Child.

This and other estate planning topics ought to be discussed with your California estate planning attorney.

There is a variety of petitions I may file in a California probate Court related to trusts. Here is a list of some of them:

Spousal Property Petition (discussed in more detail below)

Petition to Establish Creditors Claim Rrights

Petition to demand a copy of the trust

Petition to demand an accounting

Petition to confirm assets into trust

Petition for Breach of trust

Petition for heirship

Petition for appointment of trustee

Petition for removal of trustee

Petition to Determine Validity of Trust Amendment

Petition for instructions

A Spousal Petition is often the most economical way to transfer property to the surviving spouse. California Probate Code Section 13500 refers to property passing to the surviving spouse without administration. It specifically provides for distribution to the surviving spouse by will or by intestate succession “and no administration is necessary.” It is true that administration is not necessary if the property is personal or jointly titled. However, if the asset is only in the decedent’s name or is real property held in community property without also providing “with right of survivorship”, then a spousal property petition, pursuant to California Probate Code Section 13650, is likely going to be required to clear title to the assets.

Call a California probate attorney for help. Call Mitchell A. Port at 310.559.5259.

The California Probate Code contains a lot of rules applicable to the one who serves as the trustee of a trust. Starting with Code section 16000, California's laws delineate the conduct of trustees ranging from activities the exercise of discretionary power to the content of reports prepared for the benefit of beneficiaries.

Selecting a trustee to run your estate in your place at the time you die ought to be done carefully and with a clear understanding of what the job requires. Once you've made up your mind about who to name as trustee in your trust, it is prudent to get that person's consent to serve as your trustee. It is also important that the trustee understand the principles and duties governing his or her conduct vis-a-vis the trust. Here are a few things to know:

Accounts and accounting, beneficiaries

Actions and proceedings, defense and prosecution

Beneficiaries, reporting of information and accounts

Charitable trusts

Claims, enforcement

Cotrustees

Delegation of duties, restriction

Discretionary powers, reasonable standards of care

Financial institutions, compensation for provision of services

Impartial treatment of beneficiaries

Notice to creditors

Preservation of trust property

Private foundations

Productivity of trust property

Reports, beneficiaries, when not required

Separation from property not subject to the trust

Skills, duty to apply fully

Split interest trusts

Violation of duties

For a free telephone consultation about your probate, call Los Angeles attorney Mitchell A. Port at (310) 559-5259.

On November 21, 2011, the IRS released its most recent publication on the topic of federal estate and gift taxes. The pub can be accessed at this link by clicking here. This updates the version released on December 14, 2009.

Most gifts are not subject to tax. Likewise, most estates are not subject to estate tax.

If you die during 2011, you can pass estate tax free up to $5,000,000. For those dying in 2012, add another $120,000. Gifts in amounts up to those figures may also be made tax free.

An extra tax free gift is permitted during any given year of up to $13,000.

Related articles on this topic include:

New Tax Law Changes The Estate And Gift Tax Rules

Estate Planning In View Of Possible Tax Law Changes

Here are some topics regarding the administration of estates of decedents when dealing with debts as addressed by California probate law.

Throughout this blog, there are other articles on related subjects such as "California Probate Debts And Creditors", "Creditors' Claims In California Probate Court", "When You Die, Who Pays Your Debts?" and "Death And Debts".

PART 9. PAYMENT OF DEBTS

CHAPTER 1. DEFINITIONS AND PRELIMINARY PROVISIONS ............................... 11400-11402

Section

11400: Application of definitions
11401: Debt
11402: Wage claim

11405: Application of part; continued application of prior law (for proceedings commenced before July 1, 1988)

CHAPTER 2. GENERAL PROVISIONS ............................... 11420-11429

11420: Debt classes; priorities within class; proportionate shares 11421: Debts to be paid when there are sufficient funds after covering administration expenses

11422: Payment of debt not required until ordered by court;exceptions; court order to pay debts; final account and hearing

11423: Interest on debt; accrual; rate

11424: Liability of personal representative for failure to pay debt

11428: Debts unpayable because creditor cannot be found; deposit of payment with county treasurer; receipt; disposition of deposit

11429: Right of contribution among creditors; liability of personal representative

Section

11440: Petition to allocate debt

11441: Contents of petition

11442: Value of separate and community property affecting allocation where no inventory and appraisal provided; show cause order

11443: Notice of hearing on show cause order

11444: Allocation of debt

11445: Payment of allocated shares; court order

11446: Last illness and funeral expenses

CHAPTER 4. DEBTS THAT ARE CONTINGENT, DISPUTED, OR NOT DUE .. 11460-11467

Section

11460: Definitions

11461: Court order; petition; notice of hearing

11462: Agreement of interested persons

11463: Deposit in account withdrawable only on court order

11464: Distribution subject to assumption of liability

11465: Appointment of trustee

11466: Distribution subject to bond

11467: Continuation of administration

California probates can be complex and require expertise of a qualified attorney. Call Mitchell A. Port at (310) 559-5259 for help.