Feb
07
2018
0

Letters Testamentary and Letters Administration in California Probate

When the Personal Representative of the Probate Estate is appointed, whether that person is identified by the court as the executor or administrator of the estate, “Letters Testamentary” or “Letters Administration” will be issued to that person by the court. The Letters give the personal representative authority to carry out certain business of the probate proceeding.  This authority is often given under the California Independent Administration of Estates Act, with full authority or limited authority. Full authority allows the personal representative of the estate to sell or exchange real property without court supervision. Limited authority to sell real property requires court supervision. All estates however, do not require letters or a full probate proceeding. Generally speaking, a probate is only required when the decedent had assets over $150,000 in value. Estates that have no real property, and have a total value under $150,000 can often be administered through a small estate affidavit under Probate Code § 13101.

This information is not to be taken as legal advice, and you are encouraged to see your Walnut Creek Probate Attorney, Michael J. Young.

Michael J. Young

Walnut Creek, CA Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Feb
07
2018
0

The Personal Representative of the Probate Estate

When a probate is filed, the court will appoint a Personal Representative of the estate. This personal representative will be identified in the court proceeding as the executor or administrator of the estate. This person will sign and file the various documents that will be required by the court through the course of the probate proceeding. If there is a will naming an executor, the court will most likely name that individual as the executor of the estate. If there is no will, then the surviving spouse, the children of the decedent, parents, etc., can petition the court to be named as the “Administrator With Will Annexed.” The term “administrator” is also used when a person dies without leaving a will which would name an executor. If the executor named in the will has died or cannot serve for some reason, the court will appoint an administrator. If a former spouse is named in the decedent’s will as the executor, and there has since been a divorce, Probate Code § 6122 prevents the former spouse from serving as executor.

This information is not to be taken as legal advice, and you are encouraged to see Michael J. Yung, your Walnut Creek Probate Attorney.

Michael J. Young

Walnut Creek Elder Law Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Feb
07
2018
0

The Probate Spousal Property Petition

Assets that pass to a surviving spouse can be confirmed to the surviving spouse, through a petition process in probate court. This is not a full probate, and is called a “Spousal Property Petition”. This petition process usually takes around two months to complete, as opposed to around a year that is needed to complete a full probate. California Probate Code § 13500 provides for this petition process. The petition can be filed by a surviving spouse or surviving domestic partner. If a will exists, and the only beneficiary named in the will is the surviving spouse, then the property will pass to the surviving spouse. If the will lists other beneficiaries in addition to the surviving spouse, then only the property listed in the will that goes to the surviving spouse is subject to the petition. If there is no will, the community property can also be passed to the surviving spouse through the “Spousal Property Petition.” For the spousal property petition, the probate court will require that the probate form “1-DE-221, Spousal Property Petition”, be completed and signed by the surviving spouse. The petition will need to be supplemented with an explanation as to why the subject property should pass to the surviving spouse.

This information is not to be taken as legal advice, and you are encouraged to see your Walnut Creek Probate Attorney.

Michael J. Young

Walnut Creek, CA Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Feb
07
2018
0

Assets That Are Not Subject To Probate

Not all assets are subject to probate. For instance, life insurance policies that name a specific beneficiary are not subject to probate. If however, you name “my estate” or “my children” as beneficiaries, a probate will probably be required. Retirement accounts, also known as “qualified accounts” like IRA’s and 401K’s, are not subject to probate if they name a specific beneficiary. Title to real property that is held in a revocable living trust is not subject to probate, because the real property will be distributed to the beneficiaries of the trust, by operation of the terms of the trust. Title to real property that is held in joint tenancy or community property with right of survivorship will not require probate. However, if you die with your name alone on the deed, and the property is not in your revocable living trust, a probate will be required.

This information is not to be taken as legal advice, and you are encouraged to see your Walnut Creek Probate Attorney.

Michael J. Young

Walnut Creek, CA Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Feb
05
2018
0

Medi-Cal Treatment of Reverse Mortgages

Reverse mortgage loans are designed for homeowners who are 62 years of age or older, and who have a substantial amount of equity in their homes. The amount of equity is usually the difference between the fair market appraised value of your property, and the amount due on existing mortgages. As the borrower under a reverse mortgage, you can receive monthly or other periodic payments. You can also have access to the funds, like a line of credit, that you can draw on when needed. You make no payments until the loan is paid off, when you pass away and the property is sold, or when you go into a long term care facility for an extended period of time. For Medi-Cal qualification purposes, the State does not treat the amount of the loan as an asset. However, when you receive money from the reverse mortgage lender, Medi-Cal will treat that receipt of money as an asset in the month you receive it. As a result, you will need to spend that money down before the end of the month to meet the Medi-Cal qualification limits. A caveat on a reverse mortgage is that if you as the borrower go into a nursing home for an extended period of time, the loan may be called due, and the secured home will have to be sold. The proceeds of sale, which become a cash asset, could make you ineligible for Medi-Cal.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers, Seniors and families through their Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

Jan
30
2018
0

Medi-Cal Community Spouse Resource Allowance (CSRA) As of January 1, 2018

When one spouse applies for Medi-Cal, the state will look at the assets of both spouses for qualification of the ill spouse. As of January 1, 2018, the community spouse, also known as the “at-home” spouse, or the “well spouse”, may retain up to $123,600 in liquid assets. The ill spouse cannot have more than $2,000 in liquid assets in his or her name. The couple can also keep their home if the ill spouse confirms that he or she intends to return home. Assets held in revocable living trusts will be considered available, depending on the asset. Any non-exempt assets that the ill spouse has in his name, or jointly with his spouse, over the amount of $2,000, will be counted by Medi-Cal in determining eligibility. The state will want to know about all assets of both spouses, including savings, cash, stocks, etc. In addition, the cash surrender value of whole life insurance of the ill spouse cannot exceed $1500. If it does, you will want to transfer the excess cash to the well spouse. There is no ineligibility penalty for transfers between spouses. For Medi-Cal qualification, assets of the ill spouse are often transferred to the well spouse. Be sure that your revocable living trust and financial durable powers of attorney have the appropriate “transfer” and “gifting” language, in the event either of the spouses loses capacity. If incapacity sets in, and the appropriate language is not there, you may be prevented from making  transfers or gifts.There are of course more rules and regulations to consider, and this article is not exhaustive on the subject. Contact our office so that we may help you plan for qualification for Medi-Cal.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

Nov
13
2017
0

Have You Checked In On Your Older Loved One Lately? “Driving”

Have you checked in on your older in-laws and parents lately? The holiday season affords a good opportunity for you to see them and observe how they are doing. Here are a few things you should consider when you see them.

Driving

If your older loved one is still driving, find an excuse to ride with them, and observe their behind the wheel skills. Check to see if there are any obvious dents or dings on their car. Do they miss signs and signals? Do they drive very slowly? Do they get lost easily? A client of mine told me that he recently rode with his 87 year old grandmother. I asked him how the experience was, and he told me that it was not good. My client said that in his opinion, his grandmother only had about 10% of the ability that is required to drive an automobile, and that she definitely should not be driving. He said that his grandmother would signal before changing lanes, but that she had no idea if there was anyone in the adjoining lane, and that she almost caused a crash on their ride. He said that she would not drive on the freeways or at night, which is good. He also said that she would only made right hand turns if at all possible.

These are all signs that it may be time to reduce the need for the older person to drive, if possible. You could suggest to them that in addition to not driving at night, that they should drive only during non-commute hours. You could also look into alternative transportation services for them, such as local buses, taxis and Uber or Lyft. Rossmoor has a bus, and there are dial-a-bus services available. If you have the time, you could offer to take your older loved ones to their errands and appointments.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

Nov
02
2017
0

Preventing Financial Elder Abuse – Wait Three Days Before Signing Anything

How to Prevent Financial Elder Abuse – Wait Three Days Before Signing Anything:

When I was a child and I earned some money, a hole would immediately start burning in my pocket. I would be excited and tell my mother what I wanted to buy with the money. She would tell me to think about it, and to wait three days before buying anything. This was my mother’s “three day rule.”

Waiting the three days gave me a chance to think about whether the expenditure of my hard earned money was a good idea or not. Often times, I would forget about the purchase and move on to something else during those three days. The three days also gave me a chance to talk to my parents and friends and ask for their advice before I made the purchase. Also during that time, my father would strongly encourage me to save my hard earned money. I am sure that the “three day rule” saved me a lot of money, grief and disappointment.

In order to avoid financial elder abuse, we should take my mother’s “three day rule” advice. Wait three days before you sign anything that requires spending your money. During that time, ask other professionals, family members and friends what they think about the deal or contract. Do not do business with people or organizations you do not know. Ask for referrals from  professionals and your friends and family members regarding the purchase of products and services. That fact that you are being rushed may be an indication that you are being pressured into a bad deal.

Typical financial elder abuse situations that we see include but are not limited to: Time share sales; Inappropriate financial sales and advice; and Real Property Investments. Also, a reverse mortgage may not be right for you, so seek professional advice before entering signing the contract. A movie star on TV may not be the best person to take advice from regarding a reverse mortgage.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

Oct
24
2017
0

Preventing Financial Elder Abuse-Personal Relationships

One red flag that we have seen showing possible elder abuse is exhibited by family members who are overly zealous about preserving the money that is being spent for the older person’s care. We have seen family members who are “caring” for an older person, refuse to spend sufficient funds for the older person’ care. This attitude may actually endanger the older person’s health and welfare. These family members may be more concerned about preserving their possible “inheritance” than they are in caring for the older relative, and they may be guilty of financial elder abuse. These are the same family members who will say that this is the older person’s money, that the older person has earned it over their lifetime, and that the family members don’t really care if they “get” anything. Another red flag for elder abuse that we have seen is the sudden advent of relatives or old friends, who have not been seen for years, who are now expressing great concern and interest in “helping” the older person. Another “red flag” for possible elder financial abuse are caretakers who show an unusual interest in the older person’s finances. In these cases, it may be appropriate for the older person to engage the services of a geriatric care manager or professional fiduciary, who can manage the older person’s finances. The older person’s attorney-in-fact under their financial durable power of attorney may be called upon to engage these services if the older person has lost capacity. An elder law attorney and Medi-Cal attorney can help you with the appropriate language and design in the creation of your financial durable power of attorney and other estate planning documents, which may be needed for your care and for Medi-Cal qualification. As always, you should have your estate planning documents prepared sooner than later, and while you still can.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

Oct
17
2017
0

Prevent Financial Abuse: Financial & Estate Planning

Financial and Estate Planning:

One of the best ways to prevent financial elder abuse, is to make sure that you know what your financial assets are at all times. You should be in contact with your financial advisor on a regular basis to determine whether there have been any changes to your accounts. Do not be afraid of calling him or her to ask questions. Find out if your required minimum distributions from your qualified accounts, like IRA’s, are being made properly. Ask if you have any outstanding life insurance or long term care insurance. Have a discussion regarding your financial needs and income, and whether your accounts and investments should be reviewed or reallocated.

Check your bank balances on a regular basis. You should know what your monthly bills are, and how much money you have in your accounts at all times. You can arrange with your bank to view your accounts on line. If you need help paying your bills or managing your accounts, you can ask a trusted friend or family member. There are also professional fiduciaries who can assist you in paying your bills.

Never have your estate planning documents, such as your revocable living trust and financial durable power of attorney, updated by non-attorneys or document preparers. There is much involved in estate planning, and you may be creating more problems for yourself and your family by not having an attorney help you.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

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