Category: Blog

Reasons to Avoid Probate

Probate Is Open To The Public

Both probate documents and proceedings are open to the public.  This means that any person or business agent can go to the courthouse and review (and copy) the court probate file and personally attend probate court-hearings. In a probate matter, a deceased person’s estate (money, property and debts) and personal family information is available for the whole world to see.   In fact, many appraisal companies review new probate case files looking for new clients. Sadly, the executor or personal representative of the deceased’s estate will receive cold-calls from appraisal companies during these often difficult times.  Lastly, potentially embarrassing or sensitive family information could be disseminated to the public.

Probate Can Be Expensive

A probate proceeding can be outright expensive depending on various factors such as the size and complexity of the estate.  Moreover, attorneys’ fees, executor fees, probate referee fees, and court filing fees can be expensive and substantially reduce the amount of the deceased’s estate.  In other words, the deceased’s ultimate beneficiaries (usually family members) can substantially receive less property (money) because of the expended attorneys’ fees, executor fees, probate referee fees, and filing fees.

Probate Can Take A Long Time.

The legal world is full of probate horror stories of probate cases contentiously lasting several years. In California, an average probate case ranges from 8 to 12 months.  Again, this is an average probate case. If the probate case is complex, and throw-in an overcrowded and underfunded probate court, the probate case will usually last longer than a year.

Creditors

A probate matter may cause the deceased’s creditors to come out of the woodwork. A personal representative or executor of the deceased’s estate must give notice to all known creditors of the deceased.  Many of these creditors may file a creditor’s claim against the estate causing the estate to be reduced and perhaps causing a contested issue in the probate matter.

1. Joint Tenancy Property

Upon the death of a joint tenant, the real property passes to the surviving joint tenant by operation of law.   However, the surviving joint tenant must take certain steps to terminate the joint tenancy title so that record title is held in the name of the surviving joint tenant.  With respect to income tax, only the decedent’s portion of the joint tenancy property receives a step-up in basis.

2. Community Property With Right of Survivorship

Upon the death of a married person holding title to real property, the entire real property passes to the surviving spouse.  The surviving spouse will then own the real property as his or her sole and separate property.  With respect to income tax, the property will receive a full step-up in basis, as opposed to joint tenancy, which only receives a half step-up in basis.

3. Multiple Party Accounts

The California Multiple-Party Accounts Law governs accounts with more than one signatory at financial institutions.  A Multiple-Party Account can be: (1) Joint Account-an account payable on request to one or more of two or more parties; (2) P.O.D. Account-an account payable upon the account holder’s death to certain beneficiaries; (3) Totten Trust Account-an account in the name of one or more parties as trustee for one or more beneficiaries.

4. Life Estates

If the decedent held property as a life tenant with specified remainderman, then the decedent’s interest terminates upon death and the property interest passes to the remainderman without the necessity of probate.

5. Contracts

Generally speaking, certain instruments such as a life insurance policy, contract of employment, bond, mortgage, promissory note, pension plan, IRA, that direct money or benefits be paid to certain beneficiaries upon the death of the account holder, is valid even if it does not comply with the requirements for execution of a will; i.e., the transfer of money and benefits avoids necessitating a probate.

Matthew W. Harris is a Marin probate attorney located in San Rafael, California.  For more information on probate, please contact The Law Office of Matthew W. Harris today at (415) 521-5610 for a free probate consultation.

Note:  Attorney advertising.  Nothing posted on this blog by the Law Office of Matthew W. Harris, is intended, nor should be construed, as legal advice.  Blog postings and hosted comments are available for general educational purposes only and should not be used to assess a specific legal situation.  Nor does any comment on a blog post create an attorney-client relationship.  The presence of hyperlinks to other third-party websites does not imply that the Law Office of Matthew W. Harris, endorses those websites, their contents, or the activities or views of their owners.

I am sending you this important legal advisory about estate planning, a critically important topic that applies to every California adult.  Simply put, too many California adults do not have an estate plan in place in the event of their untimely incapacity or death. This means that far too many California adults and their families (including pets) are not protected.

Life is short, incapacity cases are on the rise, and death is certain.  So what are YOU doing about it?   Did you know that if you:

• Become incapacitated without an estate plan, a conservatorship proceeding may be commenced in court, perhaps costing your estate thousands of dollars in attorneys fees and court costs.

• Have minor children and you were rendered incapacitated without an estate plan, a guardianship may be commenced in court to take care of your children and perhaps costing your estate thousands of dollars in attorneys fees and court costs.

• Die without an estate plan, a probate proceeding may be commenced in court, perhaps costing your estate thousands of dollars in attorneys fees and court costs.

Life is both precious and unpredictable.  At the Law Office of Matthew W. Harris, we provide individualized attention to our clients, couples, and their families by creating customized comprehensive estate planning packages.  A typical estate plan package contains the following instruments:

• Revocable Living Trust

  – A revocable living trust is a popular estate planning tool that can serve useful property management functions during your lifetime, possible incapacity and subsequent death. A trust partially substitutes for a will. With a living trust, your assets (your home, bank accounts and stocks, for example) are put into the trust, administered for your benefit during your lifetime, and then transferred to your beneficiaries when you die.  Most people name themselves as the trustee in charge of managing their trust’s assets. This way, even though their assets have been put into the trust, they can remain completely in control of their assets during your respective lifetimes.

• Durable Power of Attorney

  – A durable power of attorney for finances is an instrument that gives authority to a third party, the “attorney-in-fact” to sign and act on behalf another person, the “principal.” The word “durable” means that the power of attorney survives the incapacity of the client.

• Advance Health Care Directive

  – An advance health care is a written document designating an agent for health care decision making in the event of a person’s incapacity. An advance health care directive is an excellent document to address your medical concerns in the event of incapacity, and end-of-life decision making.

• Pour-Over Will

  .-A “pour-over” is a catch-all document that “pours” non-trust assets to your revocable living trust that were not transferred to the trust. If most of your assets are properly titled in the name of your trust, then your “pour-over” will not take effect and your will not have to be probated.  The “pour-over” will only take effect if your non-trust assets exceed $150,000.

• Trust Transfer Deed

  – A trust transfer deed legally transfers real property to the trust instrument.  By way of example, if I created a revocable living trust, my trust transfer deed will change legal title to my property from Matthew W. Harris, to Matthew W. Harris, Trustee of the Harris Family Trust.

• Certification of Trust Instrument

  – A certification of trust is a document that establishes the valid existence of the trust and summarizes the relevant provisions of the trust so that a bank, realtor or other third person may rely on it with respect to a certain financial or real estate transactions. This document protects the private provisions of your trust from being disclosed to third parties.

The Law Office of Matthew W. Harris provides free estate planning consultations.  If you or a loved one needs a personalized comprehensive estate plan, call the Law Office of Matthew W. Harris at (415) 521-5610, or please feel free to stop by at 55 Mitchell Boulevard, Suite 15, San Rafael, California 94903.

What is a No-Contest Clause?

A no-contest clause is a provision in a will or trust that, if enforced, would penalize a beneficiary if the beneficiary files a contest with the probate court.  In other words, a no-contest clause provides that a beneficiary will lose his or her inheritance in the estate plan if he or she seeks to invalidate or impair the estate plan documents or any of its provisions.

Why Do Estate Plan Documents Contain No-Contest Clauses?

A no-contest clause is designed to discourage litigation by an unhappy beneficiary.  The no-contest clause requires the beneficiary to choose between accepting the gift provided in the estate plan and pursuing a claim that is a contest and perhaps possibly losing his or her entire inheritance.

What Is The Current California Law on No-Contest Clauses?

The California law on no-contest clauses changed dramatically in 2010.  A discussion on the former no-contest clauses and former accompanying case law is beyond the scope of this blog.  This blog will discuss the current California law on no-contest clauses (i.e., instruments that became irrevocable on or after January 1, 2010).

Generally speaking, no-contest clauses are governed by three different enforcement statutes.  The applicable statutes will depend on the date that the instrument at issue became irrevocable (i.e., on the death of the creator of the will or trust instrument).

Wills or trusts that became irrevocable on or after January 1, 2010, are governed by California Probate Code §§21310-21315.  Under the current law, no-contest clauses are greatly restricted.  In fact, a no-contest clause “shall only be enforced” against contests that are within the three types:

a.  Direct contests brought without probable cause.  A direct contest means a contest that alleges the invalidity of a protected instrument based either on fraud, lack of due execution, lack of capacity, menace, duress, fraud, or undue influence…  Probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery. California Probate Code §21311(b).

b.  Challenges to certain property transfers if expressly barred by the no-contest clause.  A no-contest clause may be enforced against a pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer, but only if the no-contest clause expressly provides for that application.  California Probate Code §21311(a)(2).

c.  Filing or prosecution of creditor’s claim if expressly barred by the no-contest clause.  A no-contest clause may be enforced against the filing of a creditor’s claim or prosecution of an action based on the claim, but only if the no-contest clause expressly provides for that application.

If an instrument contains a no-contest clause, a beneficiary and his or her attorney should review the penalty for triggering the no-contest clause.  If the penalty is insubstantial (e.g. beneficiary will receive a $2,000 inheritance) and the chance of recovery is great (e.g., a $1 million inheritance), the beneficiary may want to assume this risk and contest the instrument.  On the other hand, if the inheritance is substantial (e.g., a $1 million inheritance) and the chances of prevailing on the contest is low to moderate, then the beneficiary has a tough decision to make; take the money or perhaps lose it all if he or she contests.  It will of course depend on the facts and circumstances of each case.

Matthew W. Harris is a Marin County estate planning, conservatorship, and probate attorney located in San Rafael, California.  For more information on estate planning, conservatorship or probate, please contact The Law Office of Matthew W. Harris today at (415) 521-5610 for a free consultation.

Note:  Attorney advertising.  Nothing posted on this blog by the Law Office of Matthew W. Harris, a Marin County estate planning attorney, is intended, nor should be construed, as legal advice.  Blog postings and hosted comments by The Law Office of Matthew W. Harris are available for general educational purposes only and should not be used to assess a specific legal situation.  Nor does any comment on a blog post by The Law Office of Matthew W. Harris create an attorney-client relationship.  The presence of hyperlinks to other third-party websites does not imply that the Law Office of Matthew W. Harris endorses those websites, their contents, or the activities or views of their owners.

The Law Offices of Matthew W. Harris is pleased to announce that Marin County’s very own, Matthew W. Harris, Esq,,earned his LL.M (Master of Laws) degree in Estate Planning, Trust & Probate Law from Golden Gate University School of Law.  GGU is the only law school in the Western United States that offers such an LL.M in Estate Planning, Trust and Probate Law.

Matthew W. Harris, Esq., LL.M assists clients with estate planning, probate, conservatorship, and trusts and estates disputes.   The Law Offices of Matthew W. Harris is conveniently located in Marin County, and City of San Rafael.  Matthew W. Harris serves San Francisco County, Marin County, Sonoma County, Alameda County and Contra Costa County.

Please call Matthew W. Harris, Esq., LL.M., the Marin County estate planning, conservatorship and probate attorney you want to see.

Probate is the court administration of transferring the decedent’s estate to certain beneficiaries.  If a decedent dies with a will, then this person is deemed to have died testate.  If the decedent died without a will, then the decedent is deemed to have died intestate.

In a Marin County Probate, a fiduciary is appointed by the court as personal representative of the decedent’s estate.  The personal representative will have to ascertain and collect the decedent’s assets to protect the interests of the decedent’s creditors. The personal representative will have to arrange for the timely payment of debts and taxes of the decedent.

Once the decedent’s estate and liabilities are ascertained and properly credited, then the decedent’s estate is ready for distributions to his or her designated beneficiaries (if there is a will) or to his or her legal heirs (if there is no will).

A Marin County Probate administration can range from easy to extremely complex. Matthew W. Harris, Esq. LL.M offers free probate consultations.

Matthew W. Harris, Esq., a Marin County Probate attorney, is conveniently located in Marin County, and the City of San Rafael.

Thank you for visiting my page. Best wishes.

San Rafael Probate Attorney

On April 21, 2016, Prince suddenly died. The official cause of his death has not been released. But much media speculation surrounds his use and addiction to prescribed medication. To make matters worse, ostensibly Prince died without a will, or “intestate” as it is called in California.

Many of my clients and family members asked me whether I was surprised that Prince died without a will, as it has been reported in the media.  Much to their surprise I was not really surprised at all about Prince dying without a will.

I cannot honestly recall the number of excuses I hear from people on why they never got around to creating a basic will or a comprehensive estate plan. The most common excuses are: (1) people are young so they will create an estate plan later on in life; (2) People do not have a “large enough estate” to warrant implementing an estate plan; (3) hiring an estate planning attorney is too expensive; (4) certain people do not want to confront their own immortality; and (5) certain people never really stop to think about creating their estate plan.

If Prince truly died without a will or estate plan of any kind, then results are going to be tragic.  First, Prince’s heirs will have to be determined.  Sadly, there is a gentleman in jail who claims he is Prince’s son and is demanding that a DNA test be conducted. Second, Prince’s debts will have to be ascertained.  In fact, it has also been reported that certain of Prince’s employees, friends or agents will file claims against his estate for money.

Like any true artists, their fame and value increase exponentially after they die.  It has been reported that Prince had an estimated $300 million dollar estate at the time of his death, which will now skyrocket.  With all this money and the uncertainty of heirs and creditors, a perfect storm is brewing in Prince’s estate.

San Rafael Probate attorney Matthew W, Harris, Esq., LL.M  assists individuals and families during the emotional and legal aspects of probate in Marin County.  Matthew W. Harris, Esq., LL.M. offers free probate consultations. Call  the Law Offices of Matthew W. Harris at (415) 521-5610.  Thank you for visiting my blog.

Marin County Estate Planning Attorney

Many Baby Boomers are in the difficult position of taking care of their elderly parents. And millions of Baby Boomers are inching closer to their own golden years. It is no secret that America is aging rapidly. With the ever increasing aging population, many have responsibly created revocable living trusts to protect themselves from their potential incapacity and ultimate death. Many of these trust instruments nominate a successor trustee to step in the shoes of an incapacitated trustee.

Incapacity is an elusive term.  To begin with, every adult person is presumed to have capacity unless he or she has been determined by the court to be “incapacitated.”  A determination of incapacity must be supported by clear and convincing evidence. As a result, an incapacity determination for a fading or diminished trustee can be very difficult to prove.

Many elderly trustees can exhibit behavior indicative of diminished or fading capacity. This problem can be further compounded when the elderly trustee denies that he or she may have capacity issues and refuses to resign as trustee. Such a fading trustee of a large estate can cause a substantial amount of damage (i.e., loss of money or property).  Obviously, a fading trustee’s amicable resignation is by far the best approach.

On the other hand, if a trustee with fading capacity refuses to resign, then he or she may be removed according to the terms of the trust instrument.  A well drafted trust should grant one or more persons the power to remove a trustee, for specified reasons or on specified contingencies. By way of example, many standard trust provisions require two doctor declarations stating that the trustee is incompetent to handle his or her financial affairs.

A trustee may be removed by a court order pursuant to California Probate Code, section 17200. A trustee may be removed under Cal. Probate Code, section 15642, if it is determined that the trustee is substantially unable to manage the trust’s financial resources or is otherwise substantially unable to properly execute the duties of office, or the trustee is substantially unable to resist fraud or undue influence.

Marin County estate planning attorney Matthew W, Harris, Esq., LL.M assists individuals dealing with a diminished or fading capacity trustee.  Mr. Harris offers free trust administration consultations.

Call the Law Offices of Matthew W. Harris at his San Rafael office at (415) 521-5610.  Thank you for visiting.

To better understand trust administration, one must have a general understanding of a revocable living trust.  To begin with, a revocable living trust is a popular estate planning device used by many responsible individuals to avoid a court imposed conservatorship (incapacity) or a court imposed probate (death).  With a revocable living trust, assets are administered during an individual or couples lifetime, and during his or her potential incapacity, and then ultimately distributed at his or death to the beneficiaries designated by the trust.

Most individuals who create these trusts name themselves as the initial trustees.  Usually these trusts name close family members or close friends to serve as successor trustees of the trust.  Unfortunately, many of these family members or friends do not know what the job of being a trustee truly entails.

A trustee is a fiduciary, meaning that he or she is held to a very high standard when managing trust assets on behalf of the beneficiaries.  A trustee has many duties that he or she owes to the beneficiary(ies) of the trust.  A trustee also has many powers in administering the trust.  The duties and powers of a trustee are well beyond the scope of this blog.

Administering a trust can be extremely complex.  The Law Offices of Matthew W. Harris provides legal representation to trustees who need assistance with trust administration.  Mr. Harris, Esq., LL.M provides free trust administration consultations. The Law Offices of Matthew W. Harris is located in the County of Marin, and City of San Rafael, and serves clients throughout the San Francisco Bay area.

Thank you for visiting our blog!

Below please find 6 basic steps to create an effective estate plan:

1.Make a valid California will, also known as a last will and testament.

2.If there are sufficient assets, perhaps a revocable living trust is a better option.

3.Make a power of attorney to manage assets in the event of incapacity.

4.Make an advance health care directive to cover medical wishes in the event of incapacity.

5.Make valid guardian nominations if there are minor children.

6.File or update appropriate beneficiary designation forms.

Matthew W. Harris, Esq., LL.M assists clients with estate planning, probate, conservatorship, and trusts and estates disputes.   The Law Offices of Matthew W. Harris is conveniently located in Marin County, and City of San Rafael.

Please call Matthew W. Harris, Esq., LL.M., at (415) 521-5610 for a free estate planning consultation.