Mar
02
2018
0

How Long Does A Probate Usually Take?

Probate proceedings typically take about a year to complete, and can take even longer depending on the assets and complexities of the case. After the petition is filed, notices are given and probate publication is made. Probate statutory time frames must be adhered to, and apply to various aspects of the probate, including filing dates, publication and creditors’ claims. If there are creditors’ claims against the estate, the probate can take even longer in order to resolve the claims. If beneficiaries contest certain aspects of the probate, such as the amounts of distributions and which parties are to receive which distributions, the probate proceeding could take even longer. Real estate can be sold during the course of a probate administration, even though the probate is being contested. When real property is sold during the course of a probate proceeding, the proceeds of sale are distributed from escrow to the probate bank account, pending completion of the probate proceeding.

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

Mar
02
2018
0

What Happens To A Mortgage During Probate?

Many probates involve real estate where a mortgage or loan, is secured by a deed of trust which is recorded against title of the subject real property. Properly recorded mortgages survive the death of the borrower/owner of the property, and remain as liens against the real property through probate. As a result, mortgages are not subject to probate creditors’ claims and time limits requirements for making a claim against probate. If a mortgage is not paid off during probate administration, the lender may eventually foreclose against the real property, even during the course of a probate proceeding. The probate administrator is not required to pay off the loan through probate. It is important to communicate with the lender through the course of the probate. If the lender knows that the subject real property is being marketed for sale during the probate, the lender will usually hold off on foreclosing, pending sale of the real property through the probate proceeding.

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
08
2018
0

Proposition 58 Property Tax Exclusion -Transfer Between Parent and Child

A property tax re-assessment of the home in a transfer from a parent to a child can be avoided under California Proposition 58. For instance, when a probate is closed and the home is transferred to a child, or if the home is transferred to a child through trust administration, we can complete the “Claim For Reassessment Exclusion For Transfer Between Parent To Child.” If accepted by the assessor, the child who receives title to the real property through probate or the trust, can retain the parents’ old tax basis. Under Proposition 58, a son, daughter, child adopted before the age of 18, son-in-law, daughter–in-law and step-child, can be identified as the child. This re-assessment exclusion can be very valuable. For instance, the parents may have purchased their home some years ago for $85,000, and then leave their home to their daughter through probate or trust administration. When the parents die, their home could be worth $1,000,000. By utilizing Proposition 58, after the close of probate or trust administration, the daughter should be able to continue to pay property tax on the parents’ original tax basis of $85,000.

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, Attorney at Law

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

Jun
19
2017
0

Durable Powers Of Attorney For Young Adults

We usually don’t think estate planning documents are necessary for younger adults. But consider the potential need for financial and health care powers of attorney for them. We received a recent call from a client whose 23 year old daughter, Jenny, was in a severe automobile accident. Jenny suffered traumatic brain injury in the accident. After two weeks in the hospital, she was transferred to a skilled nursing facility for rehabilitation. Jenny has not been cognizant enough to make medical or health care decisions for herself.

Our client called us because Jenny does not have financial or medical powers of attorney, or a HIPAA statement for access to her medical records. Our client and her husband are running into problems making medical and financial decisions on behalf of Jenny. They are also having difficulty gaining access to Jenny’s medical records. If Jenny’s incapacity continues, a conservatorship proceeding in probate court may be the only resolution to this problem. In a conservatorhip proceeding, the probate court judge appoints another person, the “conservator” to care for and make decisions on behalf of another adult, the “conservatee. A probate court conservatorship proceeding is time consuming, intrusive to the family and expensive. This dilemma could have been avoided if Jenny already had these basic estate planning documents. After all, we never know what may happen to any of us at any time.

Please feel free to contact our office should you need help with estate planning, asset protection, and qualifying for and applying 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

May
31
2017
0

California Still Has A 30 Month Look Back for Gifting

California still has the 30 Month Look Back Penalty Period for Gifting. There is a federal law known as the Deficit Reduction Act (DRA), which has a 60 month look back penalty period. However, California has not to date implemented that law. Medi-Cal eligibility workers are required to use the 30 month look back period.

When you apply for Medi-Cal, the application asks whether you have given away any countable, or non-exempt assets within the last 30 months. If you have made such a gift without consideration, or for less than fair market value within the 30 months prior to making the application, a penalty period of ineligibility may be imposed. Transfers of any kind between spouses are exempt and do not create any periods of ineligibility.

The penalty transfer amount, which is also known as the monthly average nursing home private pay rate, is presently $8,515. The penalty period starts when the transfer is made, as opposed to when you make the Medi-Cal application. To calculate the penalty period, first check to see if it was made more than 30 months prior to making the Medi-Cal application. If more than 30 months have passed, there is no penalty.

Lets assume however that you have gifted $50,000 to your grandchild on October 1, 2016, and that you are applying for Medi-Cal on January 1, 2017. The gift was made 3 months prior to the application, so the 30 month look back penalty rule applies. You then divide $50,000 by $8,515, which reflects 5.87, which is rounded down to 5 months of ineligibility, starting from the date of the transfer. As a result, you would be ineligible for Medi-Cal during the months of October, when the gift was made, November, December, January and February, but you would be eligible March 1, 2017. There are of course other rules to consider, which may be to your benefit, which your elder law attorney can help you with.

Please feel free to contact our office should you need help with applying for Medi-Cal, and asset protection. 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Apr
11
2017
0

How Much Are Probate Fees?

In California, Probate Code section 10810 statutorily sets the maximum amounts that executors and attorneys may be paid for their fees. The amount of attorney fees and executor fees are ordered by the court at the end of case. If the case is complicated, for instance where litigation is involved, the attorney can request that the court allow additional fees for the attorney’s extraordinary services.

The formula for calculating statutory fees for the attorney and for the executor are as follows: (1) Four percent for the first $100,000 of the estate; (2) Three percent for the next $100,000; (3) Two percent on the next eight hundred thousand dollars; (4) One percent on the next nine million dollars.

So for instance, if the amount probated is $100,000, the executor and the attorney can each be awarded $4,000 for their fees. If the amount probated is $200,000, the executor and the attorney can each be awarded $7,000 for their fees. The following chart reflects the statutory fees for the attorney and the executor for an estate with a value up to $5,000,000.

PROBATE ESTATE VALUES TOTAL ATTORNEY AND EXECUTOR FEES*
$100,000 $8,000
200,000 14,000
300,000 18,000
400,000 22,000
500,000 26,000
600,000 30,000
700,000 34,000
800,000 38,000
900,000 42,000
1,000,000 46,000
2,000,000 66,000
3,000,000 86,000
4,000,000 106,000
5,000,000 126,000

Please feel free to contact our office should you need help with a probate. 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Dec
21
2016
0

Medi-Cal Recovery Will Be Limited to Probate Estates after January 1, 2017

We have recently blogged about the new legislation Governor Brown signed, effective January 1, 2017, which changes the rules regarding recovery by the state for payments it has made to nursing homes for Medi-Cal recipients. Under the old law, the only way we could avoid recovery was to ensure that there was nothing in the Medi-Cal recipient’s name at the date of his death. Under the new law, for Medi-Cal recipients who die after January 1, 2017, recovery will be limited to those estates that are subject to probate under California Probate Law. Assets transferred from a revocable living trust of the Medi-Cal recipient will not be subject to recovery under California Law, because assets in a revocable living trust are not be subject to probate.

For example, if Mary the Medi-Cal recipient leaves her home to her son in her will, the home will be subject to a probate. If the state paid $30,000 to a nursing home for Mary, the state will be able to recover the $30,000 from the probate of the home. If the home was in Mary’s revocable living trust at the time of her death, the state will not be able to recover against the home, because the home will transfer from the trust to Mary’s son, and will not be probated.

The new rules, effective for Medi-Cal recipients who die after January 1, 2017, also exempt certain assets from state recovery. For example, property transferred prior to death, that are no longer in the beneficiary’s name, are not subject to recovery. However, any transfers must be made within the Medi-Cal regulations in order to avoid periods of ineligibility when applying for Medi-Cal. Also, the state cannot recover against your life insurance policy as long as you name one or more beneficiaries under your policy. If you do not name a beneficiary, or if the beneficiary you have named dies before you do, there will be a probate to determine who the beneficiary is. The state will be able to recover against the probate.

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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Mar
28
2016
0

You Can Spend Down Resources for Medi-Cal Eligibility

For eligibility for Medi-Cal, you cannot have more than $2,000 in non-qualified assets in your name by the end of the month that you want to be eligible. So, if you apply for Medi-Cal on April 1, 2016, you must be down to $2,000 in assets by April 30, 2016. In addition to the $2,000, you can have any amount of qualified assets, like IRAs. Under the Medi-Cal regulations, you can spend down your assets for anything for yourself, to create eligibility. For instance, you pay for  a new roof on your home, remodel your home, pay off bills, buy new clothes, pay down your mortgage, etc. Keep your receipts so that you can document your expenditures to Medi-Cal. If you are considering going into a nursing home and then applying for Medi-Cal, you should consider spending down your assets after you have applied to the facility, and have privately paid for awhile. You should keep in mind that if you have been admitted to a Medi-Cal certified facility, and have privately paid, you cannot by law be evicted or transferred from the facility because you want to change from a private pay patient to a Medi-Cal patient.

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.

Mar
15
2016
0

Medi-Cal and Life Insurance Recovery

If you die after having been on Medi-Cal, the state can only recover what is left in your estate at the time of your death. Whatever is in your revocable living trust when you die, is recoverable by Medi-Cal because that is part of your estate. That is why we reserve powers in the revocable living trust and financial powers of attorney to transfer assets out of your trust during your life in order to avoid state recovery.

If you have life insurance and you die, your beneficiary, such as your spouse or a child, will receive the death benefit. This death benefit to your spouse or child is not recoverable by Medi-Cal. However, if you name your revocable living trust as the beneficiary of your life insurance policy, the death benefit will be funded into your revocable living trust when you die. This death benefit will be “in your estate” when you die, and therefore recoverable by Medi-Cal. As a result, if you think you may be applying for Medi-Cal at some date in the future, you should name a person or persons to be the beneficiary of your life insurance policy.

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.

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