O'Hare Law Office

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When you create a living trust, one of the most important decisions you make will be selecting someone to be your successor trustee. This person’s job will be to fill your shoes and carry out your wishes when you’re unable to do so yourself. Typically this person will be a reliable family member or friend, but how do you know exactly who to choose to fill this important role? Does this person have to be a relative, or close family friend, or could they be a trusted co-worker?... Should it be your oldest adult child even if your youngest adult child is more suited for the job? Are there concerns that your children who aren’t selected will be hurt or offended? Does this person have to live in the same area as you or is it okay if they live out of the area? Should you name co-trustees who will serve together at the same time? Deciding who to select for this important role can definitely feel daunting and overwhelming. The person that you select as your trustee should be someone who is responsible, communicates well with your other loved ones, and most importantly can be depended on to follow the wishes and instructions you have listed in your trust. Having a real conversation with an experienced estate planning attorney is the best way to navigate this process as they can share advice, and both good and not so good examples, that can help guide your decision making in selecting a trustee who will fulfill your wishes for your life’s work in order to bless your loved ones with.

I don’t actually have an estate so I don’t need an estate plan. It’s a popular belief that unless you have millions or zillions of dollars you don’t have an estate. It’s common for people to say Estate Planning isn’t something I need because I don’t have an estate." But you actually do have an estate, and here is why. In the United States your estate consists of everything you own when you pass away, including your home, your personal property inside your home, bank accoun...ts, investments, retirement plans, and business interests. Most people own at least some or all of those types of assets, but even if you own just one, the laws that we abide by consider that to be your estate. Ok. I guess I do have an estate then. So now what? I guess I’m supposed to do something about it now? If you pass away without an estate plan - a will or living trust - California law will determine how most of your property is distributed. But here’s the catch - it may not be how you want. Based on your unique situation your property may go to family members you don’t want receiving it, or it might go to family members who aren’t old enough and wouldn’t be served well by receiving your property now (if they’re just turning 18 for example). Perhaps worst of all, when the courts are the ones figuring out what to do from scratch, instead of you having your own wishes recorded in a will or trust, it costs an extreme amount of money. You can make sure none of this happens by creating your estate plan now. In your estate plan you will indicate exactly how you want your property treated, you’ll keep important decisions out of the courts, support the people that mean the most to you, and save time, money, and stress for you and your loved ones.

In the state of California an 18 year old is legally an adult. Many 18 year olds are very mature and responsible but most would probably agree that many 18 year olds today don’t have the same maturity level now as in past decades. In short, we have a lot of late bloomers nowadays. Unfortunately, if you were to pass away suddenly without a trust in place and have minor children they would be entitled to receive assets left by you when they become an adult at 18. Obviously in m...ost cases this isn’t ideal. Handing five or six figures over to an 18 year old could lead to a flash in the pan and fun for them for a short period of time, but it could also disappear quickly and leave the young person saddled with debts. Your living trust can address this reality and in your free consultation you’ll be asked, knowing everything you do about your children, at what age you want them to reach before they receive assets from you should you pass away while they are minors. Most clients decide that if that scenario were to occur they’d want their children to receive half of their share of the assets at age 25, and the other half at age 30. Most feel that this is the best way to ensure receiving assets at a young age doesn’t lead to a significant burden. Trusts have a lot of flexibility so you can take care of your loved ones in a way that is right for your unique family, including allowing the exception for some assets to be distributed early, before age 25 for example, if needed for expenses such as health costs and college tuition. This way the children can receive help for significant and important costs, while at the same time preserving the remainder of the assets until they reach the age you have decided that is best for them and your family. See more

I wanted to share some info based on a phone call I had today. The scenario is a person who owned a house suddenly passed away. They didn't have a trust. The family contacted their friend/realtor to sell the house. They all had a surprise to find out that they can't sell the house without doing a probate (a court process) first. So in the call to me they are asking about probate, the timeline, and the fees. Here's the thing...probate fees are set in California law. The fees d...on't vary from one attorney to the next. Basically they are set in stone by the politicians in Sacramento. The politicians also don't allow for the home loan to be subtracted out of the probate fee calculation. They use the gross value of the home (what a realtor would sell it for) when determining the estate value and the fees. So for this house in Santa Clarita, which will probably be listed at around $565k, the math for the probate fees for the house alone works out to over $28,000, plus court costs, plus court oversight, plus it will take about one year to complete the probate, plus the fee will increase if there are other assets aside from the home. People are always stunned to hear what probate fees are and I can't blame them. It is shocking. This is why I'm happy to see many people creating trusts nowadays, because with a properly created trust your loved ones will COMPLETELY AVOID PROBATE and court and probate fees. It costs a fraction of the price up front to create a trust and the value is absolutely incredible. Good rule of thumb in life: If you get into a probate I am happy to help, but do what you can and make decisions that allow you to stay out of court as much as possible. I hope this info helps! See more

The court process known as probate is really very simple when you break it down to its essence. Ownership of an asset, such as a house or bank account, is always shown by the owner’s name on the deed or title. Whenever one person’s name is on the deed or title, and they pass away, there needs to be a legal process to remove that person’s name to replace it with the name of a new person who is usually an adult child of the person who passed away. This gives them the authority ...to wrap things up and usually distribute those assets to the family. That process is called probate. It sounds simple, and oftentimes it is, but probate is always done through the court system, without exception. Whenever you involve the court, in any aspect of life, you can expect it to take a lot of time and cost a lot of money. The fees for probate don’t vary and are actually written into the law in California Probate Code 10810. The court calculates these fees based on the gross value of the assets, so for a house this will be the fair market value of your house without subtracting for the mortgage, or in other words what your house would sell for in the current market. Here is a sample of current probate fees: Estate value: $400,000 --- Probate fees: $22,000 Estate value: $500,000 --- Probate fees: $26,000 Estate value: $600,000 --- Probate fees: $30,000 Estate value: $800,000 --- Probate fees: $40,000 Estate value: $1,000,000 --- Probate fees: $46,000 As you can see, when you factor in the house plus other assets probate fees become shocking. Hopefully it comes as a sense of relief to you that this doesn’t need to happen. It’s very easy to avoid probate completely by establishing a living trust. If you can set aside just over one hour to meet for an easy going, friendly, no hassle appointment with an experienced attorney you’ll be well on your way to making the thought of probate ancient history for your family.

The Risks of Holding Assets in Joint Tenancy with your Adult Children Many homeowners are aware of probate and want to avoid the time and expense involved for their family. The legal document that will allow you to avoid probate in California is a living trust. Nevertheless, many people don’t want to take the time to create a trust and instead decide to quitclaim their home, usually to their adult children, to hold the property in joint tenancy. This way, the thinking goes, i...f the adult children are now joint tenants, when the homeowner passes away the home can now be transferred to those adult children with minimal effort and without probate. Unfortunately, there are significant downsides to this approach that are potentially very harmful to the homeowner and the children that they’re trying to help. When people become joint tenants with their children they oftentimes don’t realize they’re also opening themselves up to their children’s liabilities. If your child has tax problems, the IRS has the power to confiscate the entire property held in joint tenancy to satisfy the IRS debt. If your child is involved in an auto accident, it can result in a big-time lawsuit that can take your house. If you have a lovely son-in-law or daughter-in-law, and your child gets divorced from them, your child’s ownership in your house might be claimed as one of the assets to be divided by the court. If you decide to sell your home, you can’t do so without the approval of all joint tenants. Joint tenancy can also lead to disastrous gift tax, estate tax, and income tax problems. Fortunately, there is a way to leave assets to your loved ones, without probate, and that is a through a properly created living trust. With a trust, you can relax knowing that none of these scenarios will ever happen to your family and rest easy with the confidence that your assets will be distributed the way that you decide on your terms.