Save Money by how you Hold Title to Property

The manner in which you hold title to California real property will affect who will receive your property when you die.

A client recently came to our office to discuss a business deal he was entering into with a real estate investor. Their idea was to purchase a house together, fix it up, and then sell it for a quick profit. The business partner said that they should take title to the house as Joint Tenants and the client presented the documents to us for our review.

The client, for whom we had already prepared a trust, wanted to take title in the name of his trust as a joint tenant. He wrongly believed that his family would inherit his share of the house if he hadn’t sold the property before he died.

Below is a discussion of a few ways that people can take title to real property in California. As a home buyer you are asked to sign and initial your name on dozens of documents. You are asked question after question about the home purchase and oftentimes you just rely on someone else to make decisions that, unbeknownst to you, can have significant ramifications for you and your loved ones. One question that you are sure to be asked is how you would like to “hold title” to property. Before answering that question, we suggest, at a minimum, that you read below about the most common ways to hold title to real property.

Tenants in Common

Two or more people can own a property as Tenants in Common. Each of the owners can own a specific portion of a property, however if no portion is listed on the deed then it is presumed that each owner owns an equal portion of the property. Oftentimes co-owners chose this method of holding title if they own unequal shares of the property or want to retain the right to control who will own the property after their death.

An owner of property as a Tenant in Common may sell, give away, or otherwise transfer his or her ownership interest to another person. An owner of property as a Tenant in Common can include the property in their will or trust (but only if the owner takes title of the property in his/her trust) and can pass along ownership interest in the property in their estate planning documents.

If you take title to property without designating how title is to be held then it will be presumed by law that you took title as Tenants in Common. Even if you have a trust, any property you buy will not automatically be included in your trust.

Please contact us to discuss how you can avoid probate by holding your ownership interest in your trust.

Joint Tenancy

Two or more people can own property as Joint Tenants. Each of the owners typically own equal shares of the property. The biggest distinction between Joint Tenancy and Tenants in Common is that an individual who owns a property in Joint Tenancy has no interest that can be transferred to his or her heirs because his interest is transferred to the surviving Joint Tenant or Joint Tenants at the time of his or her death. Joint Tenancy is also known as Joint Tenancy with Right of Survivorship.

Owning property in Joint Tenancy can help some avoid probate, however it may not be the best idea for most people. Please contact us to discuss if Joint Tenancy is best for your situation or if you need assistance in transferring the Joint Tenancy interest of a deceased Joint Tenant.

Community Property

Married couples may hold title to property as Community Property. The form of title is similar to Joint Tenancy for a married couple or Joint Tenancy for those with a registered domestic partnership agreement.

Each spouse (or registered domestic partner) has the right to dispose of one-half of the Community Property under the laws of community property. When one spouse dies, their one-half interest in the community property will go to the surviving spouse if the deceased spouse did not otherwise dispose of his or her share of the Community Property to someone else.

Many people chose to hold title to property as Community Property, however this form of title does not control the distribution of the property when both spouses die in a common disaster. Please contact us to discuss if your needs are better served by having a comprehensive estate plan, which would include a Revocable Living Trust.

Revocable Living Trusts

In California, an individual, a married couple, or a couple with a registered domestic partnership may establish a Revocable Living Trust in order to facilitate the distribution of their assets at the time of death and to avoid probate. These trusts are also interchangeably known as a Living Trust, a Revocable Trust, or an Inter Vivos Trust.

If you have set up a Revocable Living Trust then you may take title to property in the name of your trust. A Revocable Living Trust, which has been property prepared, will allow the property to be transferred without requiring your beneficiaries to use the time-consuming and costly probate court. Since you (and your spouse) are the trustees of your Revocable Living Trust while you are living, you (and your spouse) continue to have the right to sell or otherwise transfer your share of the trust property, to change your beneficiaries, or revoke the trust altogether.

Conclusion

For the client who was going to take title to the investment property with the investor as Joint Tenants, we were able to advise him that his family would not inherit the investment property because his business partner would automatically take title to the property if the client died. The client decided not to go into business with the real estate investor.

Your decision about how you wish to hold title to your property can have a significant impact on you, your family, and anyone with whom you own property. Please contact us so that our experienced estate planning attorneys can help you to avoid unnecessary property taxes or probate expenses.

Your life, your health, your decision

What is an advance health care directive?

An advance health care directive, which was previously called a durable power of attorney for health care and in other states may be called a living will, is intended to let your doctors know your health care wishes when can’t make your health care wishes known.

Who makes your health care decisions when you are unable to do so?

In California you can designate a health care agent who will make health care decisions for you. An advance health care directive is the written proof that your health care providers will need to allow your health care agent to act for you.

Terri Schiavo Case

Terri Schiavo was only 26 years old in 1990 when she was found on the floor of her Florida home in full cardiac arrest. Terri’s doctors believed that Terri had suffered massive brain damage. Terri’s doctors treated her with physical therapy and experimental therapy hoping to return her to a state of awareness but sadly Terri required a feeding tube to live.

In 1998 Terri’s husband asked the Florida courts to authorize her doctors to remove her feeding tube because he believed that Terri had no chance of a meaningful recovery. Terri’s parents opposed the request saying that Terri was conscious.

Terri Schiavo had no Living Will (Advance Health Care Directive)

Since Terri did not have a living will (advanced health care directive) the court held a trial to determine what Terri would have wanted. The court concluded that Terri would not have wanted extraordinary measures taken to extend her life and ordered the removal of her feeding tube. Terri’s parents appealed the court’s ruling. In 2001, the appellate courts upheld the decision to remove Teri’s feeding tube. After the feeding tube was removed, a new judge ordered the feeding tube to be reinserted.

Litigation and Government Involvement in the Case through 2005

In 2005, a Florida judge again ordered the removal of Terri’s feeding tube. Terri’s parents filed more appeals and got the Federal Government involved. President Bush signed legislation with the hopes of keeping Terri alive. Emergency appeals continued through the Federal Courts but Federal Judges upheld the state court’s decision.

Terri’s feeding tube was disconnected on March 18, 2005 and she passed away almost two weeks later.

Avoid Litigation by Preparing an Advanced Health Care Directive

An advance health care directive allows you to express your desires in an legally enforceable document. Your advance health care directive does not take effect until very specific medical conditions are met. Your health care providers will consult with your health care agent in the event that you are unable to make health care decisions.

It is your decision whether you want doctors to take extraordinary measures to extend your life or whether you want to die with dignity.

Contact Wolfberg & Wolfberg, P.C.

Please contact us now for a Free Consultation if you have questions about an advance health care directive. We are here to help.

California Special Needs Trusts

What is a Special Needs Trust?

A Special Needs Trust is a legal document that is intended to benefit a disabled individual. A Special Needs Trust is frequently a separate document, but it can also be included in a trust or a will. The Special Needs Trust is intended to provide supplemental and extra care over and above that which the government already provides to the disabled individual. A Special Needs Trust must be irrevocable.

Who needs a Special Needs Trust?

A Special Needs Trust can be best for someone who lacks the mental capacity to handle their own financial affairs. A Special Needs Trust can be especially helpful for people with special needs (mental or physical) who would lose public benefits (such as Medicare, Medicaid-called Medi-Cal in California, or SSI) as a result of receiving an inheritance or receiving the proceeds from a lawsuit.

A Special Needs Trust can help protect the disabled person from being taken advantage of and losing the money that is intended for their benefit.

At Wolfberg & Wolfberg, P.C. we have extensive experience in working with Regional Centers in California. A Regional Center provides services and support to individuals with developmental disabilities under contract with the California Department of Developmental Services. Someone who receives services through a Regional Center may be an excellent candidate for a Special Needs Trust.

Protect Beneficiaries with Special Needs

A Special Needs Trust is intended to help a trust beneficiary continue receiving public benefits while at the same time being able to use assets in the Special Needs Trust to supplement those public benefits.

Many people with special needs receive public benefits in the form of medical benefits, vocational aid, and direct financial assistance. Much of the assistance provided to a person with special needs is “need based” and could be terminated if the person with special needs is determined to have the financial means to support himself or herself.

Inheritance Funded Special Needs Trust

If you are preparing your estate plan and you will be leaving some of your estate to a person who receives public benefits because of some mental or physical disabilities then you must think about setting up a Special Needs Trust to ensure the person with special needs will be able to use of property that is intended to be held for their benefit. At Wolfberg & Wolfberg, P.C. we have helped family members by preparing their estate planning documents to help relatives with special needs.

Litigation Funded Special Needs Trust

Special needs trusts are frequently used to receive an inheritance but they may also be helpful to protect lawsuit settlement proceeds. The proceeds from a personal injury judgment or settlement may be used to fund a special needs trust. Personal injury victims who have suffered debilitating injuries are able to establish a Special Needs Trust with money recovered as a result of their personal injury claim. A Special Needs Trust must be established prior to the settlement or resolution of the personal injury claim; the beneficiary is not permitted to establish the Special Needs Trust after receiving the settlement proceeds.

Who will be Responsible for Distributing Money in the Special Needs Trust?

The Special Needs Trust will be managed by someone called a Trustee. The Trustee may be a family member or a friend of the beneficiary and may even be appointed by a Court. Great care should be taken to select a trustee that you can trust to put the needs of the person with special needs before anyone else’s needs.

We are here to Help

If you believe that someone who will inherit from your estate should have a special needs trust then you must establish a special needs trust now. A special needs trust must be established before the person with special needs receives an inheritance or a personal injury settlement.

Contact Wolfberg & Wolfberg, P.C. for More Information

Please contact us if you have questions about whether someone you love would benefit from a Special Needs Trust. Please contact us now for a Free Consultation. We are here to help.

Good reasons to have car insurance

California Law Requires you to have Auto Liability Insurance

If you drive in California then you must have auto liability insurance with bodily injury limits of at least $15,000/$30,000 and property damage limits of at least $5,000 per accident. Please see our recent blog post explaining the various types of car insurance coverage.

Pursuant to California Vehicle Code Section 16028, operators of vehicles in California must provide proof of liability insurance when lawfully asked by law enforcement.

Subject to California Vehicle Code Section 16029, if you do not have liability insurance then you may be fined $100 to $200 for your first violation and $200 to $500 for any subsequent violations. Other penalties include having your driver’s license suspended and the car you were driving (even if it isn’t your car!) can be impounded. In order to get the car out of impound, the owner of the car will be required to pay any towing and storage fees.

You should have more than the Minimum Insurance Limits

Depending on your financial situation, you should consider purchasing more than minimum required limits. Even seemingly minor accidents can require accident victims to go to the emergency room where medical expenses can be significant.

You should have Uninsured and Underinsured Motorist Coverage

We strongly encourage you to purchase uninsured and underinsured motorist insurance coverage in the event that you are injured by an uninsured or underinsured driver. You will not be able to recover any money to pay for your medical expenses, lost income, and pain and suffering if the at-fault driver does not have any insurance and you do not have Uninsured Motorist coverage.

Accident Victims must have Liability Insurance to Recover Pain and Suffering Damages

If you are injured in a car accident and you do not have any car insurance then you may be unable to recover any money from the at-fault driver or their insurance company for your pain and suffering damages. You can still recover for your actual medical expenses and property damage.

California Civil Code Section 3333.4 restricts owners and operators of motor vehicles injured in a motor vehicle accident from recovering for their pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages if the injured person did not have liability insurance as required by the Financial Responsibility Laws of the State of California.

Exceptions to California Vehicle Code Section 3333.4

There are two exceptions to Civil Code Section 3333.4 that allow injured people who do not have insurance to recover such damages. You may still be able to collect for your pain and suffering if your injuries were caused by a fleeing felon or by a drunk driver.

We are happy to offer you a free consultation regarding your car insurance to make sure that you have the proper types of insurance coverage. Please contact us with your personal injury questions.

Estate Planning for your Pets

Plan now to protect your pets when you can no longer can

A Pet Trust that is prepared for you by Wolfberg & Wolfberg, P.C. will help to ensure that your pets will be protected and cared for when you are unable to do so.

What is a Pet Trust?

A Pet Trust is a legal document that will include instructions for the continued care of your pets when you are no longer able to care for them. A Pet Trust will help to make sure that your pets are cared for just as you yourself have cared for them.

Who will take care of my pet?

You will select the care giver who will best care for your pet in the event of your death or disability. You may wish to select someone who already knows your pets. In the event of your disability, you may wish to select people who live near where you live to make it easier for you to continue to see your pets.

What types of things can I include in my Pet Trust?

Your Pet Trust will include instructions that address day-to-day care issues as well as life or death decisions for your pets. You should include the name and contact information for your veterinarian so that everyone can be aware if your pets have any special needs.

You can choose the preferred veterinarian who will care for your pets. You can also select the brand of pet food that should be given to your pets and where your pet should be boarded if the care giver goes on vacation. It is completely up to you.

How do I help to make sure that my pet is cared for after I prepare a Pet Trust?

You should make sure that the care giver that you have selected knows that you want that person to be responsible for your pets. The care giver should understand that he or she must act quickly to care for your pets in the event of your death or disability. We will provide you with a card to keep in your wallet to help guarantee that the care giver will be contacted in the event of an emergency.

Your Pet Trust prepared by Wolfberg & Wolfberg, P.C., should be kept with all of your other important legal documents.

What happens to any money that is left over when my pets are no longer living?

Your Pet Trust will instruct where money in the Pet Trust will go when the money is no longer needed for the care and support of your pets. You can have the remaining money go to loved ones or to charities of your choosing.

Why do you want to avoid Probate…

…because Probate is Expensive.

Probate fees are payable to both the attorney for the estate and the personal representative of the estate (executor of the will or administrator of the estate) and are determined based on “date of death value” of a decedent’s estate. The “date of death value” is determined by a court-appointed Probate Referee.

Date of Death Value

Formulas found in California Probate Code Section 10800(a) (for the personal representative) and Probate Code Section 10810(a) (for the attorney for the estate) is applied to the “date of death value to determine how much will be paid to the personal representative and the attorney for the estate.

The formula is the same for both the Personal Representative and the Attorney for the Estate: The formula is:

4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000
0.5% of the next $15,000,000
The Court will determine a “reasonable amount” for all amounts above $25,000,000

Mortgages are Irrelevant in Determining Date of Death Value of An estate

The court-appointed Probate Referee will determine the “date of death value” of all of the estate’s assets. The “date of death value” does not take into consideration the amount of equity the decedent had in the property, just the value of the property if it had been sold on the decedent’s date of death.

The “date of death value” does not change based on how much the decedent owed on a mortgage. For the purpose of determining probate fees, a home valued at $1,000,000 on the date of death is still considered to be worth $1,000,000 even if the decedent owned the house subject to a $900,000 mortgage.

Estate Valued at $1,000,000 will be Subject to a Minimum of $46,000 in Probate Fees

For an estate with a date of death value of $1,000,000, the personal representative is entitled to a fee of $23,000 and the attorney for the estate is entitled to a fee of $23,000. If the estate has to sell real property in order to pay the decedent’s debts or if there is extensive litigation beyond the normal probate hearings then the attorney could also be entitled to “extraordinary fees” in addition to statutory fees discussed above.

Additional Probate Expenses

The current fee to file a probate in Los Angeles County is almost $400.00. Upon the filing of the petition for probate, the estate must give notice of the petition for probate in a local newspaper, which could cost an additional $500.00. The Court will appoint a Probate Referee who will appraise the value of the estate and the Probate Referee typically charges a fee of 0.1% to 1% of the gross value of the estate plus costs.

Contact us to Avoid Unnecessary Probate Expenses

The more assets that you have in your estate the more expensive probate will be. Contact us now for a free consultation and we will be happy to tell you how much money we can save your estate by avoiding probate. We are here to help.

What is Probate in California?

Probate in California is a legal process in which the estate of a deceased person is managed by resolving all claims against the deceased person (and the estate) and distributing the deceased person’s assets as dictated under the decedent’s will or pursuant to the rules of intestate succession.

Petition for Probate Must be Filed with the Probate Court

The probate process begins when the Executor files a petition with the probate court asking to be appointed as Executor of the estate. If the decedent had no will and did not have a trust then an interested party may file a petition for probate seeking appointment by the probate court for the authority to administer the estate. The priority for appointment is listed in Probate Code Section 8461.

Personal Representative Approved by the Court

The person approved by the Probate Court to handle the probate is called the Personal Representative. The Personal Representative has many responsibilities but he/she has three primary responsibilities:

Take possession of all of the estate’s assets and file an Inventory and Appraisal of the estate assets.
Pay debts, taxes and liabilities of the estate.
Distribute the remaining assets to the persons entitled to receive them.

The estate’s assets must be protected and the estate’s debts must be paid promptly in order to avoid theft, waste, fraud, or unnecessary expense. Many people retain an attorney to assist in the handling of a Probate to assist in navigating the responsibilities of the job that they must perform.

Contact us now for a free consultation regarding any questions that you may have about a California probate. For more information, read Estate Planning Basics and our Introduction to Estate Planning and Checklist. We are here to help.

Full Coverage Auto Insurance

What is Full Coverage

When I ask clients what kind of insurance they have the most common response that I get is that they have full coverage. Many people are confident that they have purchased adequate automobile insurance but in reality when a client says that they have full coverage they really mean that they have obtained the minimum insurance required by California law.

Here is a list of various types of automobile insurance and a brief description of each:

Liability Insurance: This coverage protects you if you are sued as a result of a motor vehicle accident. Your Liability Limits are the maximum amounts that your insurance company can be required to pay if it is concluded that you are at fault for an accident.

The minimum Liability Limits required for drivers in California are $15,000/$30,000. The first number represents the maximum benefit that any one victim could recover from your insurance company and the second number represents the maximum combined amount that your insurance company will pay to the victims of any one accident.

The amount of insurance coverage that you need really depends on your personal situation and we will address that in a future post on this Blog.

Property Damage: There are two types of property damage coverages, comprehensive and collision. Property damage coverage typically has a deductible, which is the amount of money that your damages must exceed before your insurance company will start to pay for your damages. The higher the amount of your deductible the lower you will pay for your property damage coverage.

Comprehensive: This coverage pays to repair or replace your vehicle and personal property inside your vehicle if it was damaged or lost as a result of fire, theft, or vandalism.

Collision: This coverage will cover damage to:

Your vehicle if your vehicle it is hit by another vehicle.
Another person’s vehicle if you cause damage to that vehicle.
Your vehicle if you are hit by or run into an object including trees, walls, curbs, etc. This coverage will repair your vehicle regardless of fault.

Medical Payments: This coverage will pay for your medical expenses if you or your passengers get injured in a motor vehicle accident, regardless of who is at fault. You or your household family members can also be covered as pedestrians who are injured by a motor vehicle. Medical Payments coverage is particularly helpful for people who do not have medical insurance.

Uninsured/Under-Insured Motorist

Uninsured/Under-Insured Motorist Bodily Injury: This coverage will cover you for bodily caused by another motorist who does not carry liability insurance. It may also provide coverage when your damages exceed the at-fault driver’s insurance coverage.

Uninsured/Under-Insured Motorist Property Damage: This coverage allows the driver to claim for compensation to damages to their vehicle. If you have collision coverage then the Uninsured Motorist Property Damage coverage will cover the amount of your deductible.

Accident Investigation Form

We have prepared an Accident Investigation Form to help you get all the information that you may need if you are in an accident. Please print it up and keep in your car in case of an accident.

Contact Wolfberg & Wolfberg, P.C. for More Information

Please call us if you have questions about the different types of insurance coverage. Please call us if you would like a complimentary review of your automobile insurance coverage. We are here to help.

Do You Have an Estate Plan?

If you do not have an estate plan then you are not alone. About half of all Americans do not have any estate planning documents.

Don’t be like President Lincoln, Howard Hughes, or Sonny Bono

Presidents Abraham Lincoln, Andrew Johnson, and Ulysses S. Grant along with Howard Hughes, Jimi Hendrix, Pablo Picasso, and Sonny Bono did not have estate plans at their death, do not follow their examples. The time to prepare a California estate plan is now.

Not Having an Estate Plan Will Cost Significantly More Money

Failing to have an estate plan in place will be a very costly decision and will delay the distribution of your assets. You have worked hard to establish your estate, you should take the time to make sure that the intended persons get what you intend for them to have.

Who do you Want to Inherit from your Estate?

If you fail to have an estate plan then you have little or no control over who will inherit from your estate.

We can Prepare your Individualized California Estate Plan

Since no two people have exactly the same wishes in deciding how to dispose of their estate, the best option is consult with an experienced attorney skilled in preparing your California estate planning documents.

Free Estate Planning Consultation

Contact us now for a free consultation and we can explain how you and your intended beneficiaries will benefit from an estate plan. For more information, read Estate Planning Basics and review our.

We have prepared a free Introduction to Estate Planning and Checklist to assist you in preparing your California estate plan.

We are ready to prepare your California estate plan today.

What is Estate Planning?

Estate planning is the process of anticipating and arranging for the distribution of the assets in your estate at your death.

In your estate plan you will name who gets what from your estate and when they will get it. Estate planning is intended to reduce or eliminate confusion and uncertainties with the distribution of your estate. Estate planning is intended to maximize the value of your estate by reducing the costs involved with resolving your estate and by seeking to reduce taxes that may be owed to the government.

What Does Your Estate Include?

Your “estate” includes all property that you own at the time of your death, including:

Real estate
Cash (bank accounts), stocks, and other securities
Personal property such as automobiles, collectibles, artwork, and jewelry.

Estate Planning and Wills

Estate planning, for most, involve the preparation of a trust or a will. Many people benefit from having a living trust as opposed to just having a will. We are happy to discuss with you which one would be best for you.

A revocable trust, sometimes called a living trust or an inter-vivos trust, will allow you to transfer title of your real estate into your trust and then avoid expensive and time-consuming probate. Distribution of your assets will take place according to the terms of the trust.
If you make a will then it will include instructions about how your assets will be distributed to your heirs. If you have a will then your estate will most likely need to go through a court-supervised process called probate in order for your assets to be distributed to your heirs.

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