Living Will Attorney

Everyone in California has a will even if they never executed one. In California as in all other states there exists a set of laws which set up a default scheme of how property should pass in the event that a person dies with property but without a will. In California these laws are known as the probate code.

In most cases the probate code will leave 1/2 to 1/3 of your separate property to a current spouse or registered domestic partner and 1/2 to 2/3 of your separate property to be divided amongst your children (or your grandchildren should your children predecease you). By default your ½ interest in your community property with a spouse or registered domestic partner will go to them in the event of your death.

Although the distribution scheme laid out by the probate code may be perfectly acceptable to many people in terms of who will receive property, for most people it is foolish to simply let their estate pass through probate. Any California homeowner or anyone else leaving significant assets when they pass will want to avoid probate through one of many probate avoidance devices. You should contact a capable estate planning attorney to help create a suitable estate plan.

The money spent up front, typically under $3,000 for a California Couple with a home and total assets under a million dollars, will end up seeming downright cheap when compared to the probate fees that BOTH an appointed personal representative and his/her attorney ($23,000 each on $1,000,000 of assets*).

Did I mention that probate fees are based on the gross value of a home and not its value after the mortgage debt is deducted**? As an example of what I mean, let’s say that Jane Doe a single professional female owns a home with a fair marker value of $1,000,000. But assume further that there is an $800,000 mortgage on the property. She dies leaving only the home; the probate fees will be based upon the $1,000,000 gross value of the home not the $200,000 in real equity she would have to pass on to an heir.

So by having an estate plan you can not only determine to whom you will give your property upon your death (not just whom the legislature decides) but you can also avoid probate fees thereby leaving more to whomever you chose.