California Tax Attorney Blog

The American Bar Association published an interesting article in its "Probate & Property" online magazine written by attorney Karen S. Gerstner of Houston, Texas entitled "A Message to Clients . . . Avoiding Probate Court Litigation". The material Ms. Gerstner discusses applies to probates in California as well.

Here is an excerpt of her article:

"How to Avoid Probate Litigation

"Don’t do things that could cause serious legal consequences without first discussing them with legal or other advisors. Come in for a “check up” on a regular basis and be prepared to discuss every issue and concern. Follow through on necessary “homework” such as account titling and beneficiary designation matters (see above). Plan ahead for possible mental incapacity by having the appropriate documents in place. Make sure the persons appointed to fiduciary positions are completely trustworthy and responsible.

"If a nonstandard estate plan is being implemented, use stronger techniques (such as a funded living trust) and additional provisions (such as a “no contest” clause). Consider creating a “will wall”: a series of wills executed over a lengthy period of time, designed to make it undesirable for a relative who the client wishes to “cut out” (or treat less favorably) to contest the will, so that if the last will is successfully contested, the contestant will still have to contest the prior will, which, through advance planning, would have been prepared to provide even less generous gifts to the contestant than the last will (and so on).

"In discussions with family members, the client should explain the reasons for the plan being implemented, although the client will need to be careful to state the reasons in a way that is calm and rational (“incendiary” statements will only add fuel to the fire and could be detrimental in a will contest).

"Not all probate litigation can be prevented, of course, but a large portion of probate litigation can be prevented by good planning. Good planning is what estate planning is all about."

If you have probate litigation questions, please call attorney Mitchell A. Port for probate help.

The question I sometimes hear as part of my California probate law practice from clients after the death of a loved one is: “What do I need to do now?” Not all of the points below will apply to all Decedents, but many of them will. What follows should be considered when a close friend or relative dies who owns property in Los Angeles County, Santa Barbara County, Ventura County or Orange County, California:

1. If the death occurs at home, you may need to contact a local police officer or coroner.

2. Notify family and friends. You may want to consider having family members contact others to save yourself some time on the phone during a stressful period.

3. If the Decedent wished, a donation of body parts and tissues should be considered.

4. If a doctor is not present, notify a doctor or coroner in order to obtain a death certificate.

5. Contact a funeral home concerning burial or cremation arrangements.

6. Look for instructions which the Decedent may have left regarding preferences for funeral and burial arrangements.

7. Complete funeral and burial arrangements.

8. Determine if the Decedent belonged to a burial or memorial society that may make special arrangements for the funeral, such as military honor guards.

9. Contact the Social Security Administration and any other government agencies or benefit program that may be making payments to the Decedent. (Note that the payment for the month of death will not be made by the Social Security Administration and others.)

10. Review the Decedent’s financial affairs and look for any estate planning documents, such as Wills and Trusts, along with any other relevant documents, including:

Continue reading "What To Do When Someone Dies" »

The Federal estate tax is a tax on the right to transfer property at death. The tax, reported on Form 706, United States Estate (and Generation Skipping Transfer) Tax Return, is applied to estates for which at-death gross assets, the "gross estate," exceed the filing threshold. Included in gross estate are real estate, cash, stocks, bonds, businesses, and decedent-owned life insurance policies. Deductions are allowed for administrative expenses, indebtedness, taxes, casualty loss, and charitable and marital transfers. The taxable estate is calculated as gross estate less allowable deductions.

The IRS Estate Tax page provides further information concerning the estate tax. Covered are topics including:

Frequently Asked Questions on Estate Taxes Gift Tax

Frequently Asked Questions on Gift Taxes

Filing Estate and Gift Tax Returns

Forms and Publications - Estate and Gift Tax

Publication 950, Introduction to Estate and Gift Taxes

What's New - Estate and Gift Tax

Once you have accounted for the Gross Estate, certain deductions (and in special circumstances, reductions to value) are allowed in arriving at your "Taxable Estate." These deductions may include mortgages and other debts, estate administration expenses, property that passes to surviving spouses and qualified charities. The value of some operating business interests or farms may be reduced for estates that qualify.

After the net amount is computed, the value of lifetime taxable gifts (beginning with gifts made in 1977) is added to this number and the tax is computed. The tax is then reduced by the available unified credit. Presently, the amount of this credit reduces the computed tax so that only total taxable estates and lifetime gifts that exceed $1,000,000 will actually have to pay tax. In its current form, the estate tax only affects the wealthiest 2% of all Americans.

Most relatively simple estates (cash, publicly-traded securities, small amounts of other easily-valued assets, and no special deductions or elections, or jointly-held property) with a total value under $1,000,000 do not require the filing of an estate tax return. The amount was $1,500,000 in 2004 and 2005. For 2006 through 2008, the amount is raised to $2,000,000.

To maximize your estate tax planning opportunities, call Mitchell A. Port at 310.559.5259.

The 2006 version of Form 706 asks if decedent ever transferred an interest in a closely held entity to certain trusts that are in existence at the decedent’s death. (Part 4, Question 12e). Be careful in looking for technical ways to avoid this question. One way around the question would be to terminate the trusts before the client’s death. But that is not practical in many situations. If the planner is “too clever,” the IRS may say the planner is being misleading and allege a Circular 230 violation. Even if the planner could avoid the current question, the IRS can change the form in the future in reaction to clever plans to avoid the question.

This new question applies retroactively to all transfers made by decedents filing the new Form 706. This question highlights the desirability of reporting sales of discounted interests in closely-held entities on a gift tax return. Eventually the IRS will learn about this transaction.

Recognize that the question only applies to transfers to trusts and not to transfers to individuals.

For decedents dying between 12/31/06 and 1/1/08, the new Form 706 (dated September 2007) makes several additional changes including the following: (a) The instructions on the reverse side of Schedule F lists detailed information that must be supplied to support any valuation discounts of assets listed on Schedule F; (b) any foreign account for which the decedent has an interest or signature authority must be disclosed (Part 4, new question 14); and (c) any private annuity being received by the decedent must be disclosed (Part 4, question 15).

Completing this form can be highly complex. If you need a referral to a qualified tax return preparer experienced with preparing Form 706, Mitchell A. Port can provide tax help.

This information is not intended to be a substitute for proper estate planning. Writing your own will may result in unintended consequences, misinterpretation and perhaps litigation. Probate will not be avoided. I have listed many of the steps necessary to write your own will even though I advise against it.

To write a holographic will as a California resident, the following steps should be taken:

1. Use a completely blank sheet of paper (no letterhead, no logo, nothing on it)

2. Write the entire will in your own handwriting

3. State your name and that you are of sound mind and not under any duress to write a will

4. State the county in which you reside

5. State that it is your last will and that it supersedes all prior wills

6. State who you are married to, if you are married, and if not, so state

7. State the names of your children, if any, and if none, so state. If you have children and they are minors, list those people in an order of priority who will be guardians

8. List those people in an order of priority who will be executors

9. State that bond is waived for any executor (and guardian – if you have children) who serves

10. State who is going to inherit what property, for example, “I leave my spouse all of my interest in any property whether real or personal, including but not limited to our home on _________, Drive, my nut company on __________, Drive, my real estate on ____________ Drive, all of my cash and investments, and all the rest of my property wherever located. If my spouse does not survive me, I leave all of my interest in said property in equal shares to my children.”

11. State who else gets something by mentioning their name(s) and what they get. Add that if either the person named is not living at the time of your death or if the property is no longer a part of your estate, then the gift to that person lapses.

12. If applicable, state your intent to disinherit anyone who contests the will. For instance: “Except as otherwise provided in this Will, I have with full knowledge omitted to provide for my children and heirs, or any others who might feel entitled to some portion of my estate. I have carefully considered the needs and abilities of my family and after such consideration have disposed of my estate in the manner provided in this Will. Should any beneficiary named in this Will, or the parent of any beneficiary named in this Will, or any person claiming through a beneficiary named in this Will, or any person claiming to be an heir, directly, indirectly, singly or in conjunction with other persons, attack this Will, or contest any of its provisions, or contest any trust established by me, or seek to impair or invalidate any part or provision of my estate plan, or conspire or cooperate with anyone attempting to do any of the aforesaid, such person's interest (or if such person has no interest, but his or her child has an interest in my estate or any trust established by me, then such child's interest) in my estate is revoked and shall be forfeit and distributed as if such person (or the child of such person) had predeceased me and any generation-skipping transfer taxes caused by reason of such forfeiture shall be charged to and paid from such property without the benefit of the use of any of generation-skipping transfer tax exemption.”

13. Sign and date the document without any witnesses or a notary. Do not let anyone else sign as a witness and do not have the will notarized

This does not avoid probate and should not be used as a substitute for a complete estate plan. Consultation with an estate planning attorney like Mitchell A. Port at 310.559.5259 is strongly advised.

The California probate court, in particular the Los Angeles Superiour Court sitting in probate, publishes online its Probate Court Rules . The probate court rules begin in Chapter 10. These court rules provide the court and those who use the probate court with guidance on how the system works. What follows is a table of contents for those California probate court rules which you can use to decide whether to pursue obtaining more information from the court website itself.

GENERAL PROVISIONS

10.0 APPLICABILITY OF RULES
(a) Applicability of Rules
(b) Rules of Construction
(c) Jurisdiction

10.1 EXCUSE FROM COMPLIANCE

10.2 PROBATE COURT INFORMATION
(a) District Courts Hearing Probate Matters
(b) Addresses and Telephone Numbers and Calendaring Information

10.3 PROBATE ATTORNEY'S NOTES
(a) Probate Notes Available on the Web
(b) Clearing Probate Notes
(c) Updated Probate Notes
(d) Failure to Clear Probate Notes

10.4 PROBATE NOTE ABBREVIATIONS

HEARINGS, EX PARTE PROCEDURES AND TRIALS

10.5 SETTING OF PROBATE MATTERS

10.6 RESETTING PETITIONS

10.7 CENTRAL DISTRICT - PROBATE LAW AND MOTION MATTERS
(a) Setting for Probate Law and Motion Matters
(b) Filing Oppositions, Joinders and Replies to Opposition in Law and Motion Matters

10.8 EX PARTE PROCEDURES
(a) Time for Ex Parte Matters in Central District
(b) Time for Ex Parte Matters in District Courts
(c) Preliminary Considerations
(d) Ex Parte Procedures

10.9 PROBATE HEARINGS CANNOT BE ADVANCED

10.10 CONTINUANCES OF NON-TRIAL MATTERS
(a) Continuances of Matters Not Ready for Hearing
(b) Continuances Pursuant to Stipulation
(c) Continuance To Permit Filing of Objections/Responses
(d) Notice of Continued Matters

10.11 CONTINUING PROBATE LAW AND MOTION MATTERS

10.12 TRIALS ON CONTESTED MATTERS IN CENTRAL DISTRICT
(a) Trial Setting
(b) Joint Trial Statements for All Contested Matters
(c) Continuances
(d) Motions in Limine

TRANSFERRING, CONSOLIDATING, AND RELATING CASES

10.13 TRANSFERS FROM ONE DISTRICT TO ANOTHER

10.14 CONSOLIDATION AND/OR TRANSFER OF CASES

10.15 RELATED CASES
(a) Related Probate Cases
(b) Relating Probate Cases To Non-Probate Cases

PLEADINGS

10.16 DOCUMENT FILINGS REQUIRE DEPARTMENT NUMBER AND HEARING DATE

10.17 DOCUMENT FILING REQUIREMENTS
(a) Reproducing Judicial Council Forms
(b) Filing Requirements to Facilitate Document Scanning

10.18 SUPPLEMENTAL AND AMENDED PLEADINGS
(a) Supplemental Pleadings
(b) Amended Pleading

10.19 OPPOSITION AND REPLY PLEADINGS

10.20 ORDERS
(a) Orders in Contested Proceedings
(b) Use of Judicial Council Form Orders
(c) Probate Volunteer Panel (PVP) Attorney's Approval of Orders
(d) Material To Be Included In Probate Orders
(e) Riders and Exhibits
(f) Nunc Pro Tunc Orders

10.21 ISSUANCE OF LETTERS TO PERSONAL REPRESENTATIVES OF DECEDENTS'ESTATES
(a) Issuance of Letters
(b) Multiple Representatives
(c) Confidential Supplement To Duties and Liabilities of Personal Representative

PROVISIONS COMMON TO VARIOUS CASE TYPESAND MISCELLANEOUS PROCEEDINGS

10.22 MOTIONS TO WITHDRAW AS ATTORNEY OF RECORD - CITATION REQUIRED FOR FIDUCIARY

10.23 PARTY TO GIVE NOTICE
(a) Party To Give Notice
(b) Undelivered Notice

10.24 PETITION TO DETERMINE TITLE TO REAL OR PERSONAL PROPERTY
(a)10.0 Caption and Setting
(b)10.0 Notice of Hearing

10.25 APPRAISAL OF PERSONAL PROPERTY BEFORE SALE

10.26 SALES OF REAL PROPERTY
(a) Published Notice for Private Sales of Real Estate
(b) Sale of Specifically Devised Real Property
(c) Increased Bid Forms
(d) Real Estate Commissions

10.27 BORROWING AND REFINANCING
(a) Petition
(b) Inventory and Appraisal

10.28 REDUCTION AND WAIVER OF BOND
(a) Court Order Required to Increase or Decrease Bond or Substitute Surety
(b) Description of Bonds in Accounts
(c) Request for Bond Waiver In Decedents' Estates Proceedings
(d) Appearance Required In Decedents' Estate Proceedings

10.29 BANK STATEMENTS AND BLOCKED ACCOUNTS
(a) Decedents' Estates and Trusts
(b) Reconciliation
(c) Confidential Financial Statements
(d) Blocked Accounts

10.30 ACCOUNTS AND REPORTS SUFFICIENCY OF BOND TO BE STATED

10.31 PAYMENT AND REIMBURSEMENT OF COSTS
(a) Non-reimbursable Costs
(b) Discretionary Reimbursement

10.32 FINDINGS AS TO CHARACTER OF PROPERTY
(a) Facts Establishing Community or Quasi-community Property Character of Assets
(b) Documents Supporting Community or Quasi-community Property Character of Assets
(c) Copies of Deeds To Be Attached
(d) Will as Basis for Passing Decedent's Property
(e) Petitioner Is Not the Spouse or Domestic Partner
(f) Spousal or Domestic Property Petitions, Findings Regarding Character of Property

10.33 AFFIDAVITS FOR REAL PROPERTY OF SMALL VALUE PROBATE CODE SECTION 13200 ET SEQ12
(a) Decedent Died Testate
(b) Decedent Died Intestate

DECEDENTS' ESTATES PROCEEDINGS

10.34 APPOINTMENT OF SPECIAL ADMINISTRATORS
(a) Notice
(b) Preference
(c) Bond

10.35 DECLINATIONS AND CONSENTS TO ACT
(a) Declination of Named Executor
(b) Consent to Act

10.36 APPOINTMENT OF PUBLIC ADMINISTRATOR
(a) Appointment
(b) Notice

10.37 PROOF OF WILLS AND CODICILS
(a) Self Proving Wills and Codicils
(b) Non-Self Proving Wills

10.38 FOREIGN LANGUAGE WILL

10.39 SUBSEQUENT PETITIONS FOR PROBATE

10.40 INCORPORATED CITIES IN LOS ANGELES COUNTY

10.41 NOTICE TO CREDITORS
(a) Notice To Known and Reasonably Ascertainable Creditors
(b) Claims by Public Entities

10.42 CREDITOR'S CLAIMS
(a) Creditor's Claims of Personal Representatives or Their Attorneys
(b) Funeral and Interment Claims

10.43 NOTICE OF PROPOSED ACTION
(a) A Notice of Proposed Action
(b) Notice Filed with the Court
(c) Petitions for Distribution

10.44 PETITION FOR FAMILY ALLOWANCE
(a) Ex Parte Petitions
(b) Limitation on Period of Family Allowance
(c) Reasonableness and Eligibility

10.45 HEIRSHIP DETERMINATIONS
(a) Notice of Hearing
(b) Notice to Attorney General
(c) Contents of Petition
(d) Genealogical Chart
(e) Escheat

10.46 PETITIONS FOR INSTRUCTIONS
(a) Limitations
(b) Specifying Instruction

10.47 COLLECTION OF DAMAGES FOR WRONGFUL DEATH/PHYSICAL INJURY OR PROPERTY DAMAGE
(a) Wrongful Death Damages
(b) Physical Injury or Property Damages
(c) Court Approval Required

10.48 PETITIONS FOR PRELIMINARY AND FINAL DISTRIBUTION
(a) Schedule of Creditors' Claims
(b) Medi-Cal Recipient
(c) Heir Confined In a Correctional Facility

10.49 PAYMENT OF COSTS OF ADMINISTRATION

10.50 ALLEGATIONS REGARDING CREDITORS

10.51 MEDI-CAL NOTIFICATION

10.52 INHERITANCE TAXES FOR DECEDENTS DYING BEFORE JUNE 8, 1982

10.53 GUIDELINES FOR ATTORNEY COMPENSATION

10.54 ALLEGATION RE CHARACTER OF PROPERTY

10.55 PROVISIONS RE SURVIVORSHIP

10.56 DESCRIPTION OF DISTRIBUTEES
(a) Names and Addresses
(b) Age of Minors and Others

10.57 ORDERS ESTABLISHING TESTAMENTARY TRUSTS
(a) Appointment of Testamentary Trustee Prior To Distribution
(b) Orders Establishing Testamentary Trusts

10.58 DOCUMENTS TO BE ON FILE BEFORE ORDER FOR DISTRIBUTION OF DEVISE TO MINOR OR FIDUCIARY
(a) Distributions To Minors
(b) Distribution To Court Appointed Fiduciary

10.59 POST DECEASED DISTRIBUTEES, DISTRIBUTION PURSUANT TO PROBATE CODE SECTION 13100 ET SEQ18
(a) Post Deceased Distributee Died Testate
(b) Post Deceased Distributee Died Intestate

10.60 ASSIGNMENT OR TRANSFER OF INTEREST IN ESTATE
(a) Notification To Court
(b) Written Assignment or Transfer of Interest
(c) Distribution Care-of Attorney

10.61 RECEIPTS OF DISTRIBUTION
(a) Distributee Receipts
(b) Recorded Deed or Order In Lieu of Distributee's Receipt

GUARDIANSHIP PROCEEDINGS

10.62 APPOINTMENT OF GUARDIANS
(a) Single Petition for Multiple Minors
(b) PRO 003 Must Be Filed with Petition
(c) Appointment of Non-Relative Guardians

10.63 GUARDIANSHIP ACCOUNTS OR WAIVERS OF ACCOUNTS
(a) Separate Accounting for Each Minor
(b) Waiver of Accounting When a Ward Reaches Majority

CONSERVATORSHIP PROCEEDINGS

10.64 APPOINTMENT OF CONSERVATORS
(a) PRO 003 Must Be Filed with Petition
(b) Appointment of Private Professional Conservators

10.65 LANTERMAN-PETRIS-SHORT (LPS) CONSERVATORSHIP
(a) LPS Conservatorship Proceedings
(b) Notice to LPS Conservator

10.66 NOTICE OF ESTABLISHMENT OF CONSERVATORSHIP

10.67 CONSERVATORSHIP CARE PLAN
(a) LASC Form Care Plan
(b) Mailing Copy of Conservatorship Care Plan to Court Investigator

10.68 COURT INVESTIGATOR'S ASSESSMENTS

10.69 RESIGNATION OF CONSERVATOR
(a) Effective Date of Resignation
(b) Final Account of Resigning Conservator

10.70 NOTICES RE FINAL ACCOUNT UPON DEATH OF CONSERVATEE

RULES COMMON TO CONSERVATORSHIP PROCEEDINGS,GUARDIANSHIPS PROCEEDINGS AND/ORTRUSTS CREATED OR FUNDED BY COURT ORDER

10.71 CONSERVATOR'S OR GUARDIAN'S INDEPENDENT POWERS

10.72 INVENTORY AND APPRAISAL OF BENEFITS

10.73 ACCOUNTS, REPORTS AND CONSERVATOR/GUARDIAN COMPENSATION
(a) Reconciliation of Financial Statements
(b) Allegation Regarding Sufficiency of Bond
(c) Allegation Regarding Blocked Accounts
(d) Insured Accounts
(e) Vesting of Accounts
(f) Court Investigator's Assessments
(g) Conservator Compensation
(h) Hearings for Approval of Conservatorship/Guardianship Accounts To Be Coordinated With Hearings For Approval of Trust Accounts

10.74 ACCOUNTS AND INVENTORIES AND APPRAISALS - CONSERVATORS AND TRUSTEES OF TRUSTS SUBJECT TO THE COURT'S CONTINUING JURISDICTION
(a) Mailing Copies to the Court Investigator's Office
(b) Lodging Original Financial Statements with the Court

TRUST PROCEEDINGS

10.75 MULTIPLE PROBATE CODE SECTION 17200 ET SEQ. PETITIONS CONCERNING ONE TRUST

10.76 PETITIONS TO CONFIRM SALE OF TRUST REAL PROPERTY

10.77 SETTLEMENTS INVOLVING CHARITABLE TRUSTS

10.78 TESTAMENTARY TRUSTEES' ACCOUNTS

SETTLEMENTS OR JUDGMENTS INVOLVING MINORS ORPERSONS WITH DISABILITIES, TRUSTS FUNDED OR ESTABLISHED PURSUANT TO COURT ORDER

10.79 SETTLEMENTS OR JUDGMENTS RELATING TO CLAIMS OF MINORS OR PERSONS WITH DISABILITIES (INCLUDING ESTABLISHMENT AND FUNDING OF TRUSTS)
(a) Proper Court To Approve Settlement
(b) Disposition of Proceeds
(c) Petition to Compromise Claim
(d) Orders
(e) Post Judgment Procedures

10.80 TRUSTS CREATED OR FUNDED PURSUANT TO COURT ORDER INCLUDING CIVIL JUDGMENT
(a) Trusts Created or Funded By Court Order
(b) Additional Trust Requirements
(c) Rule Does Not Apply to Trusts Under $20,000

10.81 SPECIAL NEEDS TRUST CREATED BY COURT ORDER/JUDGMENT

10.82 NEW COURT PROCEEDINGS REQUIRED FOR TRUSTS ESTABLISHED UNDER PROBATE CODE SECTION 2580 OR 3100

PROBATE VOLUNTEER PANEL ATTORNEYS

10.83 PROBATE VOLUNTEER PANEL GENERAL ELIGIBILITY REQUIREMENTS AND PROCEDURES FOR APPOINTMENT TO THE PANEL
(a) Active Status with the State Bar
(b) Submit Application and Compliance Statement
(c) Educational and MCLE Requirements
(d) Professional Liability Insurance

10.84 PROBATE VOLUNTEER PANEL - REQUIREMENTS FOR SPECIFIC AREAS OF INTEREST
(a) General Requirements for Specific Areas of Interest
(b) MCLE Requirements for Specific Areas of Interest

10.85 ETHICAL GUIDELINES

10.86 PVP ATTORNEY APPOINTMENTS ARE PERSONAL

10.87 WRITTEN REPORTS AND COMPENSATION FOR COURT-APPOINTED ATTORNEYS
(a) Written Reports
(b) Compensation for PVP Attorneys

APPENDIX A COMMONLY USED ABBREVIATIONS
APPENDIX B TABLE OF INCORPORATED CITIES
APPENDIX C LOS ANGELES SUPERIOR COURT GUIDELINES ONATTORNEY COMPENSATION AND COSTS IN DECEDENTS' ESTATES
APPENDIX D REQUESTING COMPENSATION FOR THE PROFESSIONAL CONSERVATOR

Continue reading "California Probate Court - Court Rules" »

California probate law says that if the person who died left property worth $100,000 or less, then the proper person may claim the property without using the probate court in Los Angeles County, Ventura County, Santa Barbara County, Orange County or any other county throughout California. No probate lawyer is necessary.

Here is what California Probate Code says to avoid probate:

If the gross value of the decedent's real and personal property in this state does not exceed one hundred thousand dollars ($100,000) and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will, do any of the following with respect to one or more particular items of property:

(a) Collect any particular item of property that is money due the decedent.

(b) Receive any particular item of property that is tangible personal property of the decedent.

(c) Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a
lien on real property.

Continue reading "Avoid Probate In California" »

The Internal Revenue Service has many forms and free publications on a wide variety of topics to help you understand and meet tax obligations, reporting and filing requirements. If you need IRS materials try one of these ways:

Walk-in: During the tax-filing season, many libraries and post offices offer free tax forms. Some libraries also have copies of commonly-requested publications. Braille materials may also be available. Many large grocery stores, copy centers, and office supply stores have forms you can photocopy or print from a CD.

Internet: You can access forms and publications on the IRS website 24 hours a day, 7 days a week, at IRS.gov.

Mail: Send your order for tax forms and publications to National Distribution Center, P.O. Box 8903, Bloomington, IL 61702-8903. You should receive your products within 10 days after we receive your order.

Phone: Call 800-TAX-FORM (800-829-3676) to order current year forms, instructions and publications and prior year forms and instructions. You should receive your order within 10 days.

Try these links:

Publication 2053A, Quick and Easy Access to IRS Tax Help and Forms (PDF 40K)

Publication 910, Guide to Free Tax Services (PDF 636K)

Need other tax help? Have other tax problems you wish to discuss with a California tax attorney? Call Mitchell A. Port at 310.559.5259.

To begin a probate in California, someone files a petition for probate so as to be appointed either as the executor or as the administrator. In California the word “Executor” is used when there is a Will and the word “Administrator” is used when the someone dies without a Will.

Who gets to serve as the Administrator in a California probate proceeding? Depending on a person’s relation to the decedent, the California Probate Code provides that those in the following order of priority are the first ones to be appointed by the probate court:

(a) Surviving spouse or domestic partner.
(b) Children.
(c) Grandchildren.
(d) Other issue.
(e) Parents.
(f) Brothers and sisters.
(g) Issue of brothers and sisters.
(h) Grandparents.
(i) Issue of grandparents.
(j) Children of a predeceased spouse or domestic partner.
(k) Other issue of a predeceased spouse or domestic partner.
(l) Other next of kin.
(m) Parents of a predeceased spouse or domestic partner.
(n) Issue of parents of a predeceased spouse or domestic partner.
(o) Conservator or guardian of the estate acting in that capacity
at the time of death who has filed a first account and is not acting
as conservator or guardian for any other person.
(p) Public administrator.
(q) Creditors.
(r) Any other person.

Want to discuss being appointed as the California executor or California administrator in a probate? Call Mitchell A. Port at 310.559.5259 for a consultation.

The Sacramento (California) public law library has an organized and easy-to-use list of probate law resources that is extraordinary. In the index is a listing of information about probate law topics which include wills, trusts, estate planning, estate administration, conservatorships, and guardianships.

Specifically, the resources and references include:

Self-Help Books

Legal Encyclopedias & Law Summaries

Practice Guides

Forms

Statutes & Court Rules

Probate Assistance

Within each of these listed topics are numerous and very helpful sub-categories worth looking at.

If you need help with probate in California and want to speak with an experienced probate lawyer, call Mitchell A. Port at 310.559.5259.

Avoiding probate when the value of the personal property is $100,000 or less is easy. The Los Angeles County Superior Court has a step-by-step explanation in addition to providing the appropriate form. Click here for the information.

If your circumstances do not fit this format, then you may require help from a Los Angeles probate attorney. Call Mitchell A. Port for probate help at 310.559.5259.

The filing fee paid to the California Superior Court to open a probate and file a petition for probate has been changed for 2008. The initial filing fee is now $320.00 for California probate matters.

Until very recently, the Los Angeles Superior Court website and no other website provided any notice of the change. I’ve learned that some California probate lawyers were surprised.

The filing fee is based on the inventory value of the estate. The filing fee used to be calculated on the estimated value of the inventory and was paid at the time the petition for probate was filed. The filing fee schedule is set by Section 70650 of the California Government Code.

The fee structure that was replaced used to provide that when a probate case was opened:

The fee was $320.00 for estates or trusts under $250,000;

the fee was $385.00 for estates or trusts of at least $250,000 and less $500,000;

the fee was $485.00 for estates or trusts of at least $500,000 and less than $750,000;

the fee was $635.00 for estates or trusts of at least $750,000 and less $1,000,000;

Etc….

Now, the fee to file a petition for probate is $320.00 and when the estate closes the estate then pays the applicable filing fee amount based on the actual final inventory prepared during the probate.

So if the estate’s inventoried value is $751,000, the total filing fee is $635.00 and since $320.00 has been paid when the petition was initially filed with the court, the estate will pay directly to the probate court an additional $315.00 before the court will order the estate closed.

Those who file the petition for probate no longer have to advance large sums of money as used to be the case. Now, only $320 is required and later when money is available because the estate is to be closed, any unpaid filing fee will be due from the estate.

Want to start a California probate proceeding? Call a probate lawyer with experience. Call Mitchell A. Port at 310.559.5259.

California probate law says that if the person who died left property worth $100,000 or less, then the proper person may claim the property without using the probate court in Los Angeles County, Ventura County, Santa Barbara County, Orange County or any other county throughtout California.

Here is what the California Probate Code Sections say to avoid probate:

If the gross value of the decedent's real and personal property in this state does not exceed one hundred thousand dollars ($100,000) and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will, do any of the following with respect to one or more particular items of property:

(a) Collect any particular item of property that is money due the decedent.

(b) Receive any particular item of property that is tangible personal property of the decedent.

(c) Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a
lien on real property.

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A. Estate Income Tax Clearance Certificates.

For certain estates, California Revenue and Taxation Code Section 19513 prohibits the probate court from allowing the final account of the fiduciary unless the Franchise Tax Board certifies that all taxes have been paid or secured as required by law. The Estate Income Tax Clearance Certificate is only required if an estate meets BOTH of the following TWO requirements:

(1) Had assets with a fair market value exceeding $1,000,000 on the date of death, AND

(2) Is to distribute assets exceeding $250,000 to one or more nonresident beneficiaries.

In determining if the assets exceed $1,000,000, include the fair market value of all assets on date of death, wherever situated, for decedents who were California residents. Nonresident decedents should only include the value of those assets located in California.

In determining if assets exceeding $250,000 are distributable to nonresident beneficiaries, the residency of a trust which is a beneficiary of the decedent’s estate is determined by the residency of the trust’s fiduciaries and beneficiaries.

Before issuing the Estate Income Tax Clearance Certificate, the FTB requires payment of all accrued taxes of the decedent and the estate. The FTB may also require a deposit by check, or bond to secure the payment of any taxes which may later become payable.

The Estate Income Tax Clearance Certificate is valid only to the end of the current taxable year. The FTB will only issue a new Estate Income Tax Clearance Certificate extending the expiration date when a return is filed for each subsequent year and the tax for that year, if any, is paid.

The Estate Income Tax Clearance Certificate is issued to the fiduciary or representative designated on the application. THE ACTUAL FILING OF THE ESTATE INCOME TAX CLEARANCE CERTIFICATE WITH THE COURT IS THE RESPONSIBILITY OF THE FIDUCIARY OR REPRESENTATIVE.

B. Effect of the Estate Income Tax Clearance Certificate and Continuing Liability of the Fiduciary.

The Estate Income Tax Clearance Certificate issued under California Revenue and Taxation Code Section 19513 does not relieve the estate of liability for any taxes due or which may become due from the decedent or the estate. Neither does the certificate relieve the fiduciary of the personal liability for taxes and other expenses as imposed by California Revenue and Taxation Code Section 19516.

C. Other Information.

You do not need to submit a copy of the Final Account of the fiduciary unless the FTB requests it.

The FTB may require fiduciaries to withhold tax on California source income distributed to nonresident beneficiaries. Income from intangible personal property such as interest and dividend income or gain from the sale of stocks or bonds is generally not taxable to a nonresident beneficiary and therefore not subject to withholding. Failure to withhold when required may make the fiduciary personally liable for the amount due.

For information on determining requirements for withholding, telephone (888) 792‑4900 (toll free) or write to: Withholding Services and Compliance Section, Franchise Tax Board, PO Box 942867, Sacramento, CA 94267-0651.

Income earned by the estate in the final year in which its assets are distributed pursuant to a decree of final distribution is taxable to the beneficiaries. The estate must file a final return and properly report the income distribution. You should compute the return for the fractional part of the year prior to death on the basis of the method of accounting followed by the decedent. You can not include income and deductions for expenses, interest, taxes, and depletion accrued solely by reason of death in the return of a decedent for the period in which death occurred. Include those items in the return of the estate or beneficiary, as the case may be, upon receipt or payment.

D. Returns Required.

You must file a final fiduciary return (Form 541) for the year in which the estate closes if the filing requirements are met. You should also file a return to establish any excess deductions allowed to beneficiaries in the final year. The decedents final personal income tax return (Form 540, 540A, 540 2EZ, or Long or Short Form 540NR) must be marked “FINAL” at the top of the return in block letters. In addition, please furnish copies of any other returns filed for the decedent or the estate within the last 12 months. Write “COPY – DO NOT PROCESS” in bold letters on the face of each copy. If you submit original returns with this application, include an additional copy of each return with the words, “COPY – DO NOT PROCESS” in bold letters on the face of each copy. Mail the completed Estate Income Tax Request for Clearance Certificate and required returns to:

Estate Income Tax Clearance Unit, MS F150
Franchise Tax Board
PO Box 1468
Sacramento CA 95812-1468

For more information about this and other California probate matters, contact Mitchell A. Port at 310.559.5259.

The California State Bar has a very interesting pamphlet offering advice on finding the right lawyer for you in California.

The pamphlet asks about 16 different questions to help you find and hire the right attorney.

The California State Bar has other useful pamphlets on topics such as California Wills, whether you need estate planning and whether you need a living trust in California.

To speak with an attorney in Los Angeles, please call Mitchell A. Port at 310.559.5259.

The following information, in question and answer form, is not a part of the California Statutory Will. It is designed to help you understand about Wills and to decide if this type of Will meets your needs. Wills do not avoid probate in California. This Will is in a simple form and you can have the form by clicking here. The complete text of each paragraph of this Will is printed at the end of the Will. You may find the answers to all of the questions below in Probate Code section 6240.

1. What happens if I die without a Will?

2. What can a Will do for me?

3. Does a Will avoid probate?

4. What is community property?

5. Does my Will give away all of my assets? Do all assets go through probate?

6. Are there different kinds of Wills?

7. Who may use this Will?

8. Are there any reasons why I should NOT use this Statutory Will?

9. May I add or cross out any words on this Will?

10. May I change my Will?

11. Where should I keep my Will?

12. When should I change my Will?

13. What can I do if I do not understand something in this Will?

14. What is an executor?

15. Should I require a bond?

16. What is a guardian? Do I need to designate one?

17. What is a custodian? Do I need to designate one?

18. Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian?

19. What happens if I make a gift in this Will to someone and that person dies before I do?

20. What is a trust?

21. What is a domestic partner?

To discuss estate planning or probate with a lawyer, please call Mitchell A. Port at 310.559.5259.