Question 1

How do I choose the right estate planning firm for my family's needs?

Accepted Answer

Choosing an estate planning firm is a decision with long-term consequences. The attorney you select will know more about your financial life, your family dynamics, and your future intentions than almost anyone outside your immediate circle — and the quality of their work will determine how your estate is handled long after you are gone. Here is what we believe matters most:

Specialization — Estate planning is a distinct practice area that intersects trust law, tax law, probate, business succession, and in many cases real estate and elder law. General practice attorneys may competently draft a simple will, but complex estates require attorneys who spend their professional lives in this space. Ask whether estate planning is a primary focus or one of many services the firm offers.

California-specific expertise — If your assets are in California, your attorney must have deep familiarity with community property law, Proposition 19 and its impact on inherited real estate, the California probate code, and state-specific strategies for incapacity planning and trust administration. These are not universal legal concepts — they require California-specific knowledge.

A relationship-based approach — Estate planning requires candor. You need an attorney who will ask about the things you might not have thought to mention: a family member with substance abuse issues, a business dispute that could become litigation, a blended family situation with competing beneficiary interests. The right firm creates the space for those conversations.

Transparent, predictable fees — Hourly billing creates a structural incentive for clients to avoid asking questions. Fixed-fee pricing removes that barrier and allows you to engage with your legal team proactively. Ask how the firm bills and what is included before you commit.

Ongoing accessibility — Your estate plan is not a product delivered once and filed away. Laws change, families change, assets change. The right firm is one you can return to — without anxiety about the meter running — when your circumstances require an update.

At NM Law, we have built our practice around exactly these principles. We welcome the opportunity to demonstrate what that looks like in practice.

Question 2

How does estate planning help avoid probate in California?

Accepted Answer

Probate is the court-supervised process for transferring assets after death — and in California, it is unusually burdensome. Statutory attorney and executor fees are calculated as a percentage of the gross estate value (not the equity), court proceedings typically take 12 to 24 months, and the entire process becomes a matter of public record. For high-net-worth families, the combination of cost, delay, and loss of privacy makes probate avoidance one of the core objectives of estate planning.

A properly funded revocable living trust is the most effective and comprehensive probate avoidance tool available in California. When your assets are titled in the name of your trust, they pass directly to your beneficiaries according to your trust terms — without any court involvement. The trust governs everything from management during incapacity to final distribution at death.

Beneficiary designations are a complementary tool. Life insurance policies, retirement accounts (IRAs, 401(k)s), and accounts designated as payable-on-death or transfer-on-death pass directly to named beneficiaries regardless of what your will or trust says. Keeping these designations current and consistent with your overall plan is essential — a mismatch between your trust and your beneficiary designations is one of the most common and costly estate planning oversights we see.

Joint tenancy is sometimes used as a probate avoidance method, but it carries significant risks: it creates unintended gift tax consequences, can expose assets to a co-owner’s creditors or divorcing spouse, and often creates complications with Proposition 19 and property tax reassessment for inherited real estate.

At NM Law, trust funding — the actual transfer of your assets into your trust’s name — is not a task we leave to you after the signing meeting. It is part of what we do. An unfunded trust is a trust that does not work, and our clients’ plans are built to function from day one.

Question 3

What is the process for updating an existing will or trust?

Accepted Answer

Estate planning is not a one-time event. The plan you created five or ten years ago reflects your life as it was then — not as it is now. Marriage, divorce, the birth or death of a beneficiary, the acquisition of significant new assets, a change in business ownership, a move to or from California, and major federal or state tax law changes are all events that can render an existing plan inadequate, inefficient, or in some cases counterproductive.

For revocable living trusts, updates are typically handled through a formal trust amendment or, when the changes are substantial, a trust restatement. A restatement rewrites the trust in its entirety while preserving the original trust’s continuity — meaning assets already titled in the trust do not need to be re-transferred. This is often the cleaner approach when a trust is more than ten years old or when multiple prior amendments have accumulated.

For wills, a new will supersedes the prior one. In California, it is important that the prior will be properly revoked — not simply replaced informally — to avoid potential disputes about which document controls.

Powers of attorney and advance healthcare directives should also be reviewed periodically. Financial institutions sometimes refuse to honor older documents, and healthcare agents designated years ago may no longer be the right choice for your current circumstances.

At NM Law, we conduct a structured review of your existing documents before recommending changes. We look for gaps between your documents and your current asset structure, conflicts between your trust terms and your beneficiary designations, and planning opportunities created by changes in law — including the significant federal estate tax exemption changes anticipated in 2026.

If your estate plan was drafted before 2020, a comprehensive review is likely overdue.

Question 4

What are the benefits of using a local estate planning attorney versus online legal services?

Accepted Answer

Online platforms have made basic legal documents more accessible — and for simple situations with modest assets and uncomplicated family dynamics, that accessibility has value. But there is a meaningful difference between generating a document and doing estate planning.

California law is specific and, in some areas, unique. The interplay between community property, Proposition 19, the state probate code, and federal estate tax law creates a planning environment that is genuinely complex. An online platform cannot evaluate whether your assets are titled correctly, whether your existing documents conflict with your beneficiary designations, whether your business interest is properly addressed, or whether a change in California law has created a planning opportunity or a problem for your family. A licensed California estate planning attorney can.

For high-net-worth individuals, the stakes of getting it wrong are not theoretical. The most costly estate planning errors — failing to file a portability election, improperly funding a subtrust, using estimated rather than qualified appraisal values, failing to retitle assets into trust — are not errors that an online document platform will catch or prevent. They are errors that attorneys prevent by asking the right questions and understanding how a plan works in practice, not just on paper.

At NM Law, our clients are not completing forms. They are engaging a legal team that understands their family dynamics, their asset structure, their business relationships, and their long-term goals — and that translates that understanding into a plan that actually works when it needs to. That relationship, and the accountability that comes with it, is what distinguishes a real estate plan from a filled-in template.

We also offer fixed-fee pricing, which addresses one of the legitimate concerns people have about working with attorneys: cost predictability. You know what you are paying before we begin.

Question 5

What are the benefits of setting up a revocable living trust?

Accepted Answer

A revocable living trust is the primary estate planning instrument for most California families — and for good reason. California’s probate process is among the most expensive and time-consuming in the country. A properly funded revocable trust eliminates that process entirely for the assets it holds. Here is what that means in practice:

Probate avoidance — In California, estates valued above $184,500 (as of 2024) are subject to statutory probate fees calculated as a percentage of the gross estate value — not the net. Attorney and executor fees on a $2 million estate can exceed $60,000, and the process routinely takes 12 to 24 months. A revocable living trust passes assets directly to your beneficiaries without court involvement, preserving both time and wealth.

Incapacity planning — Unlike a will, a revocable trust governs your assets during your lifetime as well as at death. If you become incapacitated, your successor trustee can step in and manage your assets immediately — without a court-ordered conservatorship. This is one of the most underappreciated benefits of trust-based planning.

Privacy — A will becomes a public document when it enters probate. A trust does not. For high-net-worth families, the ability to keep the nature and distribution of your estate private is a meaningful benefit.

Control — You set the terms. Distributions can be structured to incentivize specific behaviors, protect beneficiaries from creditors or divorcing spouses, provide for special needs family members, or phase distributions over time rather than delivering a lump sum to a young or financially unsophisticated heir.

Coordination across states — If you own real property in multiple states, a will-based plan may require opening probate proceedings in each state. A revocable trust holds all of those assets in a single structure, avoiding multi-state probate entirely.

The trust only delivers these benefits if it is properly funded — meaning your assets are actually titled in the name of the trust. At NM Law, trust funding is a core part of what we do, not an afterthought.

Question 6

What should I bring to an initial estate planning consultation?

Accepted Answer

The more prepared you are for your initial consultation, the more productive and efficient the conversation will be — and the faster we can get to work on protecting your estate. You do not need to have everything perfectly organized, but the following information will allow us to make meaningful progress in our first meeting:

A picture of your assets — This does not need to be a formal balance sheet. A general sense of what you own is sufficient: real estate (primary residence, investment properties, vacation homes), investment and brokerage accounts, retirement accounts (IRAs, 401(k)s, pension plans), business interests, life insurance policies, and significant personal property. If you have existing trusts, bring those documents if possible.

Beneficiary information — The full legal names of the people you intend to benefit from your estate, including children, grandchildren, and any charitable organizations. If you have minor children, think about who you would name as guardian.

Your existing estate planning documents — If you have a prior will, trust, power of attorney, or advance directive, bring copies. We will review what you have and identify gaps, outdated provisions, or potential conflicts.

Your current fiduciaries — Who do you trust to serve as your successor trustee, your executor, your agent under power of attorney, and your healthcare agent? You may not have final answers, but having thought about it in advance helps move the conversation forward.

Business documentation — If you own a business, bring any operating agreements, shareholder agreements, or buy-sell agreements. Business succession is a core part of estate planning for many of our clients and often has the longest lead time.

Questions — Write them down. The consultation is your time. There are no routine questions in estate planning when your family’s future is involved.

Question 7

What documents are included in a standard estate planning package?

Accepted Answer

A well-constructed estate plan is not a single document — it is an integrated set of instruments that work together to protect you during your lifetime and transfer your wealth efficiently at death. At NM Law, a comprehensive estate plan for most of our clients includes the following:

Revocable Living Trust — The cornerstone of a California estate plan. Holds your assets, avoids probate, provides for incapacity management, and controls distribution to your beneficiaries on your terms. For married couples, this is typically a joint trust or a set of coordinated individual trusts depending on your tax and asset protection goals.

Pour-Over Will — A companion document to the trust that captures any assets not transferred into trust during your lifetime and directs them into the trust at death, subject to probate for those specific assets.

Durable Power of Attorney for Finances — Authorizes a trusted person to manage your financial affairs if you become incapacitated. Without this document, your family may need to petition the court for a conservatorship — an expensive and public process.

Advance Healthcare Directive — Combines your living will (instructions for end-of-life care) with the appointment of a healthcare agent who can make medical decisions on your behalf.

HIPAA Authorization — Allows designated family members or advisors to access your medical records when needed.

Trust Funding Documents — The legal instruments that actually transfer your assets into trust ownership: deeds for real property, assignment agreements for business interests, and coordination with your financial institutions for investment accounts.

For high-net-worth clients, additional documents may include irrevocable trust agreements, family limited partnership agreements, beneficiary designation reviews, or specialized planning instruments for business interests, retirement assets, or charitable giving. The right set of documents depends on your assets, your family structure, and your goals — which is why we spend significant time on the front end understanding your situation before we draft anything.

Question 8

What is the typical cost for a comprehensive estate plan?

Accepted Answer

The cost of a comprehensive estate plan in California varies based on the complexity of your assets, the number of entities involved, and the structures required to protect your family and your legacy. At NM Law, we long ago abandoned the hourly billing model — not because it was unprofitable for us, but because it was fundamentally misaligned with our clients’ interests.

For high-net-worth individuals and families, a comprehensive estate plan typically includes a revocable living trust, a pour-over will, durable powers of attorney, an advance healthcare directive, and the legal work required to fund your trust — meaning the actual transfer of real estate, investment accounts, business interests, and other assets into trust ownership. When blended families, business succession, or tax mitigation strategies are involved, additional structures such as irrevocable trusts, family limited partnerships, or SLATs (Spousal Lifetime Access Trusts) may be appropriate.

NM Law scopes the entire legal relationship upfront. Before we begin, you know exactly what is included, what the total fee will be, and how to plan for it. There are no surprise invoices for five-minute calls. There are no vague estimates that escalate. That level of predictability is, in our experience, what sophisticated clients actually want from their legal team — and it is what we deliver.

To discuss what a plan tailored to your situation would involve, we welcome a consultation with our team.

Question 9

My estate plan is already drafted. Am I protected?

Accepted Answer

Not necessarily. For high net worth individuals, estate planning is not complete when documents are signed. The first spouse’s death triggers a technical legal and tax process that must be handled with precision — properly filing Form 706, electing portability, and obtaining qualified appraisals are foundational steps in preserving generational wealth. Disciplined trust administration is not optional for families focused on long-term legacy

Question 10

How does NM Law use technology without compromising attorney oversight?

Accepted Answer

Long before AI became a buzzword, NM Law was leveraging systems that allowed attorneys to work faster, collaborate securely, and handle routine tasks efficiently. Today, technology manages the mundane with full attorney oversight — freeing NM Law’s attorneys to focus on what truly matters: thoughtful analysis, creative problem-solving, and strategic guidance tailored to each client’s goals. This is innovation with intention, not automation for automation’s sake.

Question 11

What is a fixed-fee estate planning attorney and how does NM Law's model work?

Accepted Answer

NM Law scopes the entire legal relationship upfront. Clients know exactly what services are included, what the total cost will be, and how their legal budget fits into annual planning. There is no hesitation to ask questions and no concern that a five-minute conversation will trigger a surprise invoice — communication becomes proactive rather than reactive, and problems are addressed early before they become expensive or irreversible.

Question 12

Why am I being billed $1,000 an hour just to ask my attorney a question?

Accepted Answer

Hourly billing changes client behavior in dangerous ways. When every call, email, or question comes with a ticking clock, clients hesitate, delay important conversations, and wait until problems have escalated — often when options are limited and costs have skyrocketed. At rates now exceeding $1,000 per hour in major markets, even successful families began questioning the value. NM Law eliminated this problem entirely.

Question 13

What are the most common post-death administration mistakes that trigger estate tax problems?

Accepted Answer

The most costly errors include failing to file Form 706 when no tax is due, missing portability election deadlines, using estimated rather than qualified appraisal values, failing to properly fund subtrusts, and not retitling assets according to trust terms. These are not minor clerical oversights — they are fiduciary failures with substantial tax consequences.

Question 14

Do I need a formal appraisal for estate tax? Can't my accountant just estimate values?

Accepted Answer

No. For estates including closely held businesses, investment partnerships, commercial real estate, or illiquid private investments, the IRS requires assets to be supported by a qualified appraisal from a qualified appraiser. Informal estimates, broker opinions, or internal calculations are not sufficient and can jeopardize a portability election entirely. NM Law ensures valuations meet IRS standards.

Question 15

What happened in Roland v. Commissioner and what does it mean for my estate?

Accepted Answer

In the 2025 Tax Court case Roland v. Commissioner, the surviving spouse filed Form 706 to elect portability — but used estimated asset values rather than properly supported qualified appraisals. When the surviving spouse later died, the IRS successfully challenged the portability election, and the deceased spouse’s unused exemption was lost entirely. The lesson: filing is not enough. It must be done correctly.

Question 16

Our estate is under the exemption threshold. Do we still need to do anything?

Accepted Answer

Often yes. Even if your current net worth falls below the federal estate tax exemption, asset appreciation, business liquidity events, real estate value increases, or legislative changes reducing the exemption could rapidly change your exposure. Filing Form 706 to elect portability preserves flexibility and protects against future growth or shifts in tax law. This is strategic risk management, not just paperwork.

Question 17

What is estate tax portability and why should I care right now?

Accepted Answer

Portability allows a surviving spouse to use the deceased spouse’s unused federal estate tax exemption — but only if it’s properly elected by filing Form 706. For high net worth couples holding appreciating business interests, private equity, concentrated stock, or real estate, this administrative step is critical to minimizing estate tax at the second death. It is not automatic. It requires action.

Question 18

My spouse just died. Do I actually need to file a tax return if no estate tax is owed?

Accepted Answer

Yes — and this is the single most expensive mistake wealthy families make. Even if no estate tax is due at the first spouse’s death, the estate must file Form 706 and affirmatively elect portability to preserve the deceased spouse’s unused exemption. Failing to file means that exemption is permanently and irreversibly lost. For a $30–40M estate, that’s millions in avoidable tax. NM Law handles this filing with the precision it demands.

Question 19

Why do I need a California Probate Attorney?

Accepted Answer

The California Probate Court administers estates upon someone’s death. If you don’t have an estate plan the Probate is a process you will have to endure. It is stressful, really confusing, the courts are backed up and delays are inevitable. The primary reason you would hire a probate attorney that is certified in California is to ensure you are doing everything you can to navigate through the probate process efficiently. The team at NM Law Attorneys are excellent in either estate administration or can navigate through conflict should there be a need for probate litigation. Discuss your matter with our team today and get take the right steps to work through Probate. Contact us HERE

Learn how to avoid California probate HERE

Learn how to avoid probate on a bank account HERE

Question 20

What role does the beneficiary play when someone passes away?

Accepted Answer

Have you been listed as a beneficiary of a loved one’s estate? The death of a loved one must be really tough and we are sorry for your loss. It is important to understand your role as a beneficiary during these times and how to work through:

Probate court should there not be an estate plan
Liaison parameters with trustees and other beneficiaries
Estate administration
Possible family conflict

Question 21

What is the role of a trustee in an estate plan upon someone’s death?

Accepted Answer

The primary role of a trustee is to ensure that the terms of the trust are carried out according to the estate plan.

Have you been appointed a trustee of an estate?
Were you aware of it or did you just find out?
Are you finding it hard to understand how to navigate matters?
Is there conflict with family members and you seem to be caught unsure of what decisions to make?

We have a team of compassionate attorneys who advocate for trustees.

Contact us HERE

Question 22

What If there is no will?

Accepted Answer

What if there is no will and you are in dealing with California Probate?

If there is no will, the estate will have to go through the probate process as it would with a will. However, two significant differences apply to the probate administration process when there is no will.

First, the probate court will appoint an administrator as the first step. The court may appoint a family member, but the court can appoint any person other than a family member. The person selected for distributing the estate’s assets may not have been the decedent’s choice.
Second, the distribution of the assets will be determined by what is called the intestate law because the decedent has named no heirs. This means that the assets may be distributed to persons that would not have been chosen to receive them. The heirs are determined by Law of Succession. The court will require proof of the identification of the heirs that would be covered by the law before any distributions making any distribution of assets. The list of heirs covered under the law is extensive, which means that the court will reach to extended family members.

Question 23

Who would inherit the assets under the intestate laws?

Accepted Answer

If the decedent was married or had a registered domestic partner, the court will need to understand what assets are community assets, or marital assets, and which assets are held solely by the decedent. If assets are held jointly or with rights of survivorship, then the transfer to the surviving spouse or the registered domestic partner is automatic.

The Law of Succession, which controls asset distribution when there is no will, stipulates that community, or certain marital assets, will go directly to the registered domestic partner or spouse if the decedent did not have children or close relatives. The law prevents the separate assets from being given in total to the registered partner or spouse. If there is not a registered domestic partner or spouse, the law specifies an order of distribution of all separate assets among any children and certain close relatives.

A surviving spouse with children will inherit all of the community assets and 1/2 or 1/3 of the decedent’s separate assets, and the children will inherit 1/2 or 1/3 of the separate assets. The spouse will inherit all of the community property and 1/2 of the separate assets with the remaining 1/2 passing to the decedent’s parents if there are no children.

Question 24

What are the assets that must be probated?

Accepted Answer

Here is a list of assets that must be probated:
– Assets held only in the decedent’s name.
– Assets that are not registered with the decedent’s domestic partner or not held with a spouse as community property.
– That portion of any asset owned by the decedent that was also owned or held as tenant in common with other persons.

Here is a list of assets that are excluded from the probate process:
– Assets held in joint tenancy
– Assets held in a living trust
– Assets with a named beneficiary such as life insurance and IRAs
– Assets registered by a married couple as community property with rights of survivorship.

Question 25

What can I expect during the probate process?

Accepted Answer

The executor must file a document called the “Petition for Probate” with the court having jurisdiction where the decedent lived. The petition includes details about the decedent, about the executor, and information about the heirs. The size of the estate must also be included along with a statement about whether a surety bond is required or waived by the will. The heirs must be given a formal notice that the probate process has been started. If there is a will, then it must be proven to be valid, and this requirement is usually satisfied by having the witnesses to the will signing providing a sworn statement which is submitted to the court.

The court will then issue “Letters of Testamentary” or “Letters of Administration” which appoints an executor or an administrator and grants this person authority over the assets of the estate. This authority stipulates that the person appointed also has responsibility to keep the assets safe, keep real estate property insured and maintained, and heirlooms safeguarded. The executor will begin an accounting of the assets and compile a complete inventory and appraisal of each asset for filing with the court. The total value of the assets will need to be determined and filed with the court along with the inventory. The executor must pay outstanding debts and ensure that all tax returns are filed.

Some assets may be liquidated by the executor to pay debts and taxes. The state law allows the executor to handle most matters without first obtaining permission from the court. Some actions such as selling real estate require prior court approval. If the heirs include siblings of the decedent, then their approval must be obtained before the real estate can be sold. When all debts and taxes have been paid and the assets have been converted into cash or some other form of transferable assets, then the executor will ask the court to close the estate. A final accounting must be made to the court before the assets are transferred.

Question 26

What are estate taxes?

Accepted Answer

In order to understand estate taxes, it is important to know that California does not have an estate tax. Estates in California are subject only to the federal estate tax, but only 2 out every 1,000 estates owe any federal estate tax. Two reasons account for this low number of estates. First, there is a high exemption amount. Secondly, many people have taken advantage of the legal loopholes, and their estates are taxed on average about 16% of the net estate value and not the highest tax of 40%. This article will provide an overview of these points, and our office would be pleased to discuss this matter with you.

Estate Tax Calculation
The estate tax calculation begins with the amount of the gross estate. The gross estate includes the fair market value of all property owned by the decedent and property they had an interest in. Proceeds from life insurance owned and controlled by the decedent are included as are annuity proceeds. Some exceptions do exist. For example, if securities owned by the decedent were purchased with taxable income, then only the increase in the value of securities is taxable. This also applies to the appreciation of the value of art work and real estate.

The Net Estate Value
The net estate value is calculated by subtracting several deductions from the gross estate value and after the allowed exemptions have been taken. The deductions include end-of-life expenses, funeral expenses, outstanding debts, the fair market value of property to be donated after death. The value of property that transfers to the spouse by the automatic rights of survivorship is also deducted.

Exclusions From Calculating The Net Estate Value
After the net value of the estate has been calculated, the value of lifetime charitable gifts made to people and organizations, except to qualified tax-exempt organizations, that exceeded the annual exclusion for every year since 1977 must be added to the value of the estate to arrive at the net taxable value. These are the annual gift exclusions for tax purposes. However, there are other charitable gift exclusions that our office would be pleased to discuss with you.

The personal exemption level of $5.43 million is excluded from the remaining net fair market net value of the estate. This exclusion applies to anyone who inherits the assets of the estate. However, it usually applies to one person, but it will apply to each spouse who jointly inherit an estate.

The exemption per person in 2020 is $11,580,000 which will revert to $5,000,000 per person in 2026 if no additional legislative action occurs.

A surviving spouse is entitled to the marital deduction which means that property inherited passes free of any estate tax. This deduction is not available to noncitizen spouses, but noncitizen spouse can use the personal exemption. The surviving spouse is also entitled to the personal exemption.

Special estate tax rules may apply to family business and businesses jointly owned with persons other than a spouse. Farms are may also be subject to special rules.

Question 27

Will I pay federal tax when I die or when I inherit?

Accepted Answer

The federal estate tax applies to the transfer of assets from the decedent’s estate to the heirs. However, the federal estate tax allows a personal exemption of $11.58 million in 2020, but the amount of the personal exemption will be reduced by the amount of gifts made during the heir’s lifetime. The federal gift tax limits the value of assets that can be transferred to each person without a tax, other than to a spouse, to $15,000 or $30,000 jointly. Each gift amount will be deducted from the personal exemption. Gifts to tax-exempt charitable organizations are excluded from the taxable estate.

All assets owned by the decedent may be taxable including property held in joint tenancy, in living trusts, IRAs, and life insurance if the insurance was owned and controlled by the decedent. The assets are to be valued at current market value, and not the purchase price. However, the marital deduction exempts all assets passed to a surviving spouse from being taxed. The marital deduction does not apply to noncitizen spouses, but the personal exemption does apply to assets left to noncitizen spouses.

The marital deduction is the total of all assets left to the surviving spouse. The taxable estate is determined by subtracting the amount of the marital deduction along with any gifts made prior to death. The marital deduction can be affected by many factors, and our office can provide a detailed explanation of each factor.

An estate can be worth more than is anticipated if real estate has a greater market value than it is thought to have. Art and antiques may also have a greater value than expected. These are considerations for the executor to keep in mind.

There are more aspects of the federal estate tax law than can be covered in this article. We will be pleased to discuss your specific situation and, if estate taxes are a concern, then our law office can show you how to minimize and even how to legally avoid federal estate taxes.

Question 28

When a house is inherited by multiple people, is selling it the best option?

Accepted Answer

It may be necessary to sell the house to pay the debts of the estate. In this instance, the court will force the sale of the house. There may be practical reasons for selling a house inherited by multiple people, and one such reason is the difficulty of each heir in realizing a benefit from their inheritance.

Selling the house in this circumstance would require the agreement of all of the people who inherited the house. Each heir must recognize the problems that arise with multiple ownership of a house. Of course, the heirs can agree on hiring a property management company to rent the house and handle the payment of taxes and insurance as well as maintenance. However, this option may not result in an income sufficient enough to justify keeping the house. The rental income may be taxable for each heir whereas the proceeds from the sale of the house would likely not be subject to any tax.

If the house is sold after the estate is closed, and certainly after it has been an income producing property, then the proceeds will be taxed if the house sells for more than it was valued when the estate was closed.

A problem can arise if one of the heirs dies. The transfer of their interest in the house could become complicated, and the surviving heirs may find themselves in a difficult situation.

If an heir wants to live in the home, then the issue becomes one of a charitable recognition of their need for the home, or whether the other heirs need the money that would be realized from the sale.

The best way to prevent problems between the heirs and to prevent the ongoing problems with multiple ownership of rental property is to sell the house and distribute the proceeds.

Question 29

Siblings can’t decide what to do with the house and we are all fighting...now what?

Accepted Answer

This is a difficult situation since the approval of each sibling is required to submit even a value of the house to the court. Assuming this hurdle is cleared, then the house will be transferred to the siblings.

Fighting over the disposition of the house is not going to serve any of the siblings long-term. A discussion needs to begin with ideas each sibling has for the home, and then the discussion should focus on the pros and cons of each idea. If each sibling is reasonable, this could result in a solution that is satisfactory to each sibling. Often, people hold onto an idea without fully assessing its implications. If one sibling seems to be the major distraction, then this person’s issue needs to be discussed. They may have a problem with the other siblings that has not surfaced.
If reaching an agreement is not possible, then one of the siblings needs to be proactive and consult with an attorney about strategies that could resolve this problem. This is not to suggest that litigation is an appropriate step, because litigation is expensive and it would likely not result in a decision at all. However, a skilled attorney can manage a discussion about the implications of the deadlock. An attorney may have other ideas for resolving this problem that would not involve a hostile confrontation. This would include pointing out the legal implications of property with multiple owners.

It is more likely than not that this problem will be resolved over time because the heirs will have a chance to contemplate the issues that are impeding the disposition of the property. The discussion will never benefit from anger or hostile actions on the part of anyone.

Question 30

I am the executor of a will...what now?

Accepted Answer

First, retrieve a copy of the will. Then, file it with the court along with the “Petition to Probate.” The court will provide you with written instructions on the probate process and your obligations as executor of the estate.

Keeping the heirs informed about actions you take and actions of the court is an excellent idea. This step will likely prevent the unrest of more than one heir.
You will need to establish a checking account and take control of liquid assets that are not jointly owned or that are not controlled by rights of survivorship. You will have cash to pay the decedent’s debts and pay other expenses including a surety bond if one is required.

Keeping accurate records of all financial transactions is essential for filing a complete report with the court. You will need to disclose all receipts and payments along with asset evaluations. You will be responsible for asking the court to close the estate when all the assets have been distributed, and all debts and taxes are paid.

This is an overview of your responsibilities, and it is not all inclusive. You may find hiring an attorney to be helpful. The probate process can be complicated when the estate involves a variety of assets.

Question 31

What happens if someone dies without leaving a valid will?

Accepted Answer

Dying intestate means someone died without a will. In this case, the deceased person’s estate falls into the probate process to allow transfer of the property’s legal title to the deceased person’s heirs.

Question 32

What is probate?

Accepted Answer

The probate process is essentially a set of rules under the state probate law that stipulates how assets or property can be disposed of when someone dies intestate. A probate law court usually presides over this legal process. It primarily involves the appointment of an administrator, identification of heirs, and the distribution of property.

Question 33

When does the probate process start?

Accepted Answer

The probate process officially commences when a personal representative/administrator is appointed to receive any and all legal claims regarding the estate and to handle payment of creditors as well as management of any other expenses that the estate owes to third parties. Distribution of the estate can only be done after necessary expenses are offset and heirs are appropriately identified. The probate court of law is responsible for identifying assets/ property that should be distributed as well as how they will be distributed.

Question 34

What are the expenses involved with the probate process?

Accepted Answer

There are certain expenses that an administrator has to settle before distribution of the estate. They include legal fees, judgment(s) against the estate, administrative fees, unpaid bills and outstanding loans, and others.

Question 35

How are the heirs of an intestate person identified?

Accepted Answer

The next step involves identification of heirs. The applicable probate laws are applied in the identification of heirs. Generally, parties who are automatically considered as heirs are surviving spouses, parents and children. If a court of law fails to identify heirs, the state acquires the deceased person’s property by default.

Question 36

Are some distributions made automatically, even if a person dies intestate?

Accepted Answer

The distribution of certain types of property is automatic, even if someone dies without leaving a will. For instance, if the deceased owned a bank account, vehicle or land jointly with another party who is left behind, the party who remains alive automatically inherits the property.

Question 37

How much estate does each estate inherit from an intestate person?

Accepted Answer

Rules that determine how much every heir is entitled to inherit from the estate of a person who dies intestate vary from one state to another. However, in most legal jurisdictions, the probate without a will process usually involves distribution of property among the deceased person’s children and surviving spouse(s).

Question 38

What are some examples of how the intestate process actually works?

Accepted Answer

If the deceased was officially married but had no children, the surviving spouse is entitled to inherit all matrimonial property that was jointly owned by both. If the marriage brought forth children and property wasn’t jointly owned, the surviving spouse is entitled to inherit a fraction of the property, whereas the remaining fractions are distributed to the deceased person’s children as well as parents. If the deceased was unmarried at the time of his/ her death, the estate is distributed in accordance with priorities outlined in the state’s probate code.

Question 39

What is a community property state?

Accepted Answer

California is a community property state, meaning California state law governs how property acquired by a couple during a marriage is divided between them when the decide to end their relationship. State law classifies property as marital property. Marital property is owned equally by both parties. At the end of the relationship, marital property typically is divided equally, unless one of the parties can prove it to be separate property that is not subject to division.

Question 40

Can my ex-spouse take property that I inherited during our marriage?

Accepted Answer

At the moment a spouse inherits property during a marriage, that property belongs only to the inheriting spouse and is considered “separate property” not subject to division. However, depending on how you handle the inherited property over time, part or even all of the inherited property may end up in an ex-spouse’s hands.

Question 41

How should I handle property that I inherited during the marriage to protect it from being divided at divorce?

Accepted Answer

California permits you to claim as separate property not subject to division the house your aunt left to you in her Will even if the inheritance came to you during your marriage.

Question 42

How should I handle income generated by inherited property?

Accepted Answer

If you claim the inherited property as separate property, then all income generated by the property is also separate property. That is, if you choose to rent out your late Aunt’s home, the rental income is separate property that belongs to you and cannot be divided. Similarly, if you purchase something using the money generated by the rental income from the inherited property that you claimed as separate property, then the item(s) that you purchased are also separate property that belongs to you and cannot be divided.

Question 43

How do I claim inherited property as separate property?

Accepted Answer

Preventing inherited property from becoming community property can be a challenge without the assistance of an attorney to guide you. The road to claiming property as separate property is riddled with potholes that can get you caught up in a concept called commingling.

Question 44

What is commingling?

Accepted Answer

Commingling is the mixing of community property and separate property that could cause your inheritance to be divided during a divorce. For example, if you sell your late aunt’s home you inherited and deposit the money into a bank account held jointly by you and your spouse, then you have commingled separate property with community property. If you use some or all of the money received through an inheritance to make repairs or improvements to a home that you own jointly with your spouse, then you have commingled separate property with community property.

Question 45

How can I protect my inheritance from becoming community property that my ex-spouse can take?

Accepted Answer

Do not commingle your inheritance or profits derived from it with assets you own together with your spouse.
Do not add your spouse to title or take loans out in both of your names secured by that property.
Keep and protect all records pertaining to inherited assets in order to have them available should your spouse challenge their status as separate property.
If you are already inherited then you may want to consider placing your separate property inheritance into a separate property trust.

Question 46

How can the greater family assist in protecting my inheritance from an ex-spouse?

Accepted Answer

Advise your family to give you your inheritance through an irrevocable trust with a third-party trustee. This keeps it out of your ownership all together while still providing you a beneficial interest. It would likewise not be subject to spousal support orders or other negative effects of divorce.

Question 47

How do I reduce the value of my taxable estate?

Accepted Answer

Gift assets during your lifetime instead of waiting to give it as part of your estate after your death.

Question 48

Why should I reduce the value of my taxable estate?

Accepted Answer

It immediately reduces the value of your taxable estate by the amount of the gift while also ensuring that future appreciated value of the asset does not become part of your estate.

Question 49

When should I reduce the value of my taxable estate?

Accepted Answer

Taking full advantage of the current amount of the estate and gift tax exemption allows for estate tax savings that may not be available five years from now, particularly in light of our record-high budget deficit which will eventually need to be paid down through tax revenues. Loss of the enhanced estate tax exemption at the end of 2025 could cause your estate to pay more taxes than had you gifted away part of it.

Question 50

How can I overcome my concerns of how the recipient will handle the gift?

Accepted Answer

It is perfectly understandable to have reservations about the ability of the recipient of a gift not to squander or mismanage it. An irrevocable trust may offer a sound alternative to an outright gift. And, certain irrevocable trusts can provide income to you, your spouse, your children and/or your grandchildren whilst still removing the assets from your “estate”.

Question 51

How can an irrevocable trust help reduce the taxable value of my estate?

Accepted Answer

When a gift is made via an irrevocable trust for the benefit of charities or to your loved ones, you have peace of mind knowing the assets are managed by a trustee for their immediate and long term benefits. An estate planning attorney can offer advice and guidance about creating an irrevocable trust to take full advantage of the current estate and gift tax exemption and can even set up certain trusts to provide income to one class of people and distributions of principal to another class.

Question 52

Can I delay addressing the tax concerns of my estate?

Accepted Answer

If you delay, then you run the risk of encountering even bigger problems down the road. The more and the earlier you prepare, the more you’ll thank yourself for taking the time to seek counsel on complex tax aspects of planning your estate.

FAQ

How should I handle property that I inherited during the marriage to protect it from being divided at divorce?

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