What is Probate? Who Gets My Stuff? What Happens When I Die? What if I Become Incompetent? Who Will Make Critical Healthcare Decisions? Who Cares for Minor Children?

What is Probate?

Probate is a legal process for all estates valued over $184,500 (including real estate) when the property or assets are not held in trust. Simply put, a court case must be initiated in order for the State of California to determine several factors, including, but not limited to:

Probate is a legal process for all estates valued over $184,500 (including real estate) when the property or assets are not held in Trust. Simply put, a court case must be initiated in order for the State of California to determine several factors, including, but not limited to:   
  • Does a Will exist? Is it valid?
  • Who are the rightful heirs and beneficiaries to the deceased?
  • How much is the decedent’s property worth?
  • What financial obligations must be first addressed?
  The State Court investigation often requires extensive time, research and resources to determine these answers. The costs are paid for by the estate of the deceased. They are determined by a state court and the estate is then assigned an administrator. Once the court has addressed all these matters AND decided who the rightful heirs are, only then does it allow for the distribution of these assets. A couple important facts about probate:  
  1. Probate cases often take several years to settle. Meanwhile, ALL PROPERTY AND ASSETS ARE FROZEN. That means any real estate in the name of the Deceased can’t be sold until the Probate is completed.
  2. The cost of Probate is approximately 6% or more of the total value of the estate, and that’s if there are no disagreements or other issues that frequently arise. In a case where an individual owns a home valued at $1,000,000 and has $100,000 in liquid assets the cost to the estate would exceed $65,000.
  3. Probate is a public court case where all your personal and financial affairs are made available to the general public.
  If this sounds like a nightmare, it is. At Vanguard Legal Group, we’ve never written a Trust that went to Probate. Contact us today for a Will & Trust package that will protect you, your loved ones and everything you’ve worked so hard for.

Who Gets My Stuff?

A complete Will & Trust package gives you the freedom to distribute your assets to whom you choose, how you choose to do it, at any time of your choosing. In California, if an individual dies intestate (without a will or trust) and owns a home, the entire estate enters into a process called Probate.

A complete Will & Trust package gives you the freedom to distribute your assets to whom you choose, how you choose to do it, at any time of your choosing. In California, if an individual dies intestate (without a Will or Trust) and owns a home, the entire estate enters into a process called Probate. Their estate will enter into a lengthy, expensive and public court process to determine the full value of your estate and to whom it will go. In that case, regardless of your wishes or relationship status with family members and other loved ones, a court will decide how all your property and assets are distributed. If you don’t want a judge who doesn’t know anything about you or your family to determine who receives everything you’ve worked so hard for, it’s vitally important to make those wishes known by creating a Trust. At Vanguard, we have drafted more than 23,000 Trusts and not one has ever gone to Probate.

What Happens When I Die?

When someone dies with a Trust, there will be no Probate. However, specific legal requirements must be addressed quickly for the estate to be settled with no delay in distributions.

When someone dies with a Trust, there will be no Probate. However, specific legal requirements must be addressed quickly for the estate to be settled with no delay in distributions. When you choose to join the Vanguard family for this process, we will guide and direct you seamlessly through an experience that typically goes like this:
  • Scheduling a meeting with an Attorney who will provide a comprehensive review of all Trust documents, answer questions and provide guidance to the Successor Trustee through the process.
  • Filing of the original Will with the probate court in the county where they died.
  • Providing proper notification to the Department of Health Care Services.
  • Notifying the Franchise Tax Board (if necessary)
  • Preparation of Affidavit of Death to transfer a California property
  • Preparing a new legally-acceptable Certificate of Trust for the Successor Trustee.
  • Preparation and mailing up to five statutory notices and copy of the trust to all beneficiaries
  • Obtaining a new Tax ID for the Trust
  • Creating one Small Estate Affidavit, as necessary
Without legal guidance, this process can be difficult, costly, time consuming and produce several negative results. At Vanguard, we can do everything for you. All you do is pick up the phone and we provide you comprehensive support throughout the entire process.

What if I Become Incompetent?

According to a recent study by the NIH, adults reaching 70 years of age have approximately a 30% chance of suffering from dementia, losing the capacity to make decisions for themselves. Including other physical disabilities, adults living past 80 years of age have up to a 74% risk of incapacity or incompetence during their lives.

According to a recent study by the NIH, adults reaching 70 years of age have approximately a 30% chance of suffering from dementia, losing the capacity to make decisions for themselves. Including other physical disabilities, adults living past 80 years of age have up to a 74% risk of incapacity or incompetence during their lives. According to the Department of Health & Human services, 72% of adults aged 70 or older will require Long term or palliative care. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5624986/) Incapacity is generally considered to be the inability to make financial and healthcare decisions for oneself. If and when this occurs, who will you trust to step in and execute your wishes, manage your finances and make critical healthcare decisions? While an Advance Healthcare Directive can be extremely helpful outlining your general healthcare and end of life wishes, what happens in case of incapacity when specific and timely decisions must be made? A complete Trust package includes a Durable Power of Attorney (POA). What is a Durable Power of Attorney? This is a document that allows you to name a representative capable of making decisions on your behalf. A Durable POA is included in all our Complete Trust packages and can be tailored to your specific needs. Want to name someone specific to make healthcare decisions? We can do that. Want to name someone who can pay your bills and make financial decisions on your behalf? We do that too. Trust someone to do it all? We can execute general, limited and custom Durable Power of Attorney to meet your specific needs.

Who Will Make Critical Healthcare Decisions?

Common law dictates that individuals possess autonomy and self-determination until the point of discapacity. Competency refers to the mental ability and cognitive capabilities required to execute a legally recognized act, rationally. So if we become irrational or discapacitated, what happens then?

Common law dictates that individuals possess autonomy and self-determination until the point of incapacity. Competency refers to the mental ability and cognitive capabilities required to execute a legally recognized act, rationally. So if we become irrational or incapacitated, what happens then? In the state of California an Advance Health Care Directive lets your physician, family and friends know your health care preferences, including the types of special treatment you want or don't want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation and organ donation. Without an Advance Healthcare Directive, a family member of an incapacitated person will be forced to file a motion with a California court for conservatorship and be appointed Conservator of the Person. Only then will they have the ability to direct your healthcare decisions. At Vanguard, every Will & Trust package includes an Advance Healthcare Directive that allows you to get the care you want, avoid unnecessary suffering and relieve the burden of decision making from loved ones during moments of crisis or grief.

Who Cares for Minor Children?

If you die without a Trust, the State of California will determine who will care for your minor children. For most people, the idea of putting their children through that additional trauma and possibly having them be placed in the California State Foster Care System after the crisis and trauma of a parent’s death, seems downright inhumane.

If you die without a Trust, the State of California will determine who will care for your minor children. For most people, the idea of putting their children through that additional trauma and possibly having them be placed in the California State Foster Care System after the crisis and trauma of a parent’s death, seems downright inhumane. Vanguard Legal Group, where you’re treated like family, can keep this devastating event from happening. The reason we only specialize in the custom drafting of Wills & Trusts is because our primary goal is to protect you, your family and everything you’ve worked so hard for. In cases of unexpected tragedy, we will provide you with the legal documents to:
  • Clearly designate who YOU want to be long term guardians of your minor children
  • Keep children out of temporary foster care during an already traumatic crisis
  • Allocate resources for their long term care
  • Protect their inheritances
Without designating the individual or individuals tasked with this responsibility, any family member can make an equal claim to care for orphaned children. For many of us, our family is the most important thing in our lives. A complete Trust package ensures that your family is cared for and protected at all times.