Fresno California Law Firm- Law Offices of Mark D. Edwards

Estate Planning 101 - Just the Basics [2009-03-06]

Mark D. Edwards

California has a legitimate interest in the peaceful transfer of property upon your incapacity and after your death. This is known as the police power of the state. To accomplish this, the legislature has written numerous laws to govern your affairs if you do not engage in your own planning. For instance, a conservator of your person will be appointed if you become incapacitated so that medical decisions can be made on your behalf.

A conservator of your estate will also be appointed if you become incapacitated to pay your bills and make other financial decisions on your behalf. For minors, historically, conservatorships have been referred to as "guardianships." Unfortunately, conservatorships require court supervision and are commonly known as living probates. Sometimes they are the safest for clients as some people do not have people in their lives that they can trust. However, for people with trustworthy family and friends, court supervision can be avoided through properly drafted powers of attorney. Powers of attorney are allowed under the probate code and have very specific rules.

For financial decisions, a power of attorney for finance is required to avoid conservatorship of the estate. For health care decisions, an advance health care directive is required to avoid a conservatorship of the person. Therefore, one set of law addresses the specific questions of who makes major decisions on your behalf while you are incapacitated.

The other major question is what happens to my estate after I pass away. Generally, the proper court having jurisdiction over probate matters will have jursidiction over assets that cannot be transferred by operation of law, through a trust, or through beneficiary designation. If you have a will and have property subject to court jurisdiction, all assets listed in the will and in the courts jurisdiction will be transferred with the courts blessing. This is known as death probate. For estates under a certain dollar amount, summary administration is available. If you inherited real property by will and the real property is within the courts jurisdiction, you will have to probate the property to be able to transfer or lease the realty out. In other words, the probate process will give you good and marketable title assuming there are no other title defects. Fees for executors and attorneys are set by statute.

As of 1.1.2009, fees for a $200,000.00 probate would be $7,000.00 for the executor and $7,000.00 for the attorney if an attorney is hired to help administer the estate. As a probate estate increases in size, the fees to the executor and attorney increase as well. This being the case, many prefer to save fees by avoiding probate jurisdiction through alternative planning. However, there are many traps for the unwary and self help planning may produce unwanted and other negative consequences if not done properly. Proper planning avoids unnecessary delay, expense and public court supervision. In very limited circumstances, death probate may even be an advantage.

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nor his staff are physically

present at any of the addresses set

forth below on a daily basis.

Meetings are by appointment only.

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6073 N. Fresno St., Ste 101

Fresno, CA 93710

(NW Corner of Bullard & Fresno)

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1015 G. Street
Reedley, CA 93654

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Must Be Directed To:

P.O. Box 967, Reedley, CA 93654

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Law Office of Mark D. Edwards

Estate Planning 101 - Just the Basics [2009-03-06]

Mark D. Edwards

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