Frequently Asked Questions

Probate is a court proceeding where a person has died, either with or without a valid will, and a petition is filed to determine who are the rightful heirs and to ensure that all creditors receive notice of the death and have an opportunity to file claims again the decedent’s estate. The cost to probate an estate in California is based on three categories: statutory fees, extraordinary fees, and ordinary fees and costs.

Statutory fees are set by law, meaning by California State Statute. Extraordinary fees are for extra work completed by the personal representative and or probate attorneys in San Diego, CA at an hourly rate, such as fees associated with managing a tenant, selling a home, and tax preparation. Ordinary fees include the court filing fees and cost to appraise the home before it’s sold, and the premium on a surety bond, if required or ordered by the court. For a modest estate appraised at $575,000 (a home and a small amount of cash), the statutory fee due to the attorney and personal representative (executor) is $14,500 each, plus the extraordinary fees (if any) and approximately $1,822 in cost and fees, excluding the fee for a surety bond, and creditor’s claims, for an average total of $30,822 in fees and costs. The estimated time to complete the process is approximately 12 to 18 months.

A trust is a contract between the Grantee (the person who creates the trust) the trustee (the one who controls the trust), and the beneficiaries (those who are entitled to the benefits of the trust). One of the main benefits of a Revocable Living Trust is privacy; one’s affairs are handled in an attorney’s conference room as opposed to a public courtroom. Also, the process is generally quicker, and the cost is less expensive.

The Grantor can determine how the trust will be operated by the Trustee, and who benefits, how, and when. The Grantor can also create a trust that permits him or her to be the Trustee and give him or herself the right to receive all the benefits from the trust. We often refer to a Revocable Living Trust as a person’s “Book of Instructions.” A well-established advantage of Revocable Living Trusts is the avoidance of probate which is required if a person uses a will to distribute assets after death.

As wills are becoming more popular, especially with young adults (as 2020 saw a 63% increase, according to Caring.com), this is a great option to keep in mind. To get in contact with a will and trust lawyer in San Diego, CA trusts, reach out to us at the Law Offices of Antoinette Middleton today!

If you own assets in your name alone, they may pass from you to the people you love, if you leave a will. Without a will, your assets pass according to the state rules, also known as intestacy. However, assets will pass through your will to your loved ones only if the will is written properly.

A person can better protect loved ones by creating a trust, which can provide protection from creditors, protect children who are not good with money, or those who have problems such as addiction or mental illness, with the use of supplemental trust within the Family Trust. For more information, contact a trust and estate attorney in San Diego, CA.

Most of us become disabled before we die; either mentally disabled as with Alzheimer's or physically disabled from some ailment or maybe some sort of accident. If you become sick or disabled either temporarily or permanently, who will make decisions for you? A durable power of attorney, once executive, does not need a physician’s letter to state that you are incapacitated.

It allows you to appoint someone you trust to handle your affairs if you cannot do so. If you cannot pay your bills, get records, or make decisions, your family will be prevented from helping you get treatment, pay doctors, or handle Medicare. Without a power of attorney, your family may have to file what is known as a conservatorship of the person and the estate with the probate court, which involves the court and two or more lawyers and could cost thousands of dollars.

This is why hiring dependable wills and probate lawyers in San Diego, CA trusts is so important. You will want to get these issues sorted ahead of time so your family does not have to worry.

People often confuse the benefits of Medicare with Medi-Cal. Medicare is a health care benefit provided by the federal government to individuals over 65 or under 65 and disabled. Medicare provides insurance for doctor visits, tests, and care provided in a hospital and limited benefits in a nursing home. Medi-Cal is health insurance for the poor. To qualify, a person must not exceed certain income or asset limits. If a person’s income or assets exceed the qualifying limit, he or she might not be eligible; there is no age restriction to qualify. Medicare will only pay 20 days in a nursing home and, in limited situations, it can pay a partial cost of 80 additional days for a total of 100 while Medi-Cal will pay the entire cost of the nursing home. One should note that there could be a recovery of expenses paid by Medi-Cal if a person dies owning a home in their name or has other assets, which is called Medi-Cal estate recovery.

For more information, contact our trusted probate attorneys in San Diego, CA. 

A parent of a special needs child is the child’s natural guardian and can make all decisions regarding the child. However, a parent’s rights as guardian do not allow the parent to have access to the child’s assets (i.e., proceeds from a lawsuit or gifts from a family member). In addition, when the child reaches the age of 18, parents lose the right as the natural guardian to make healthcare and other decisions for the child. To maintain their rights, a parent will need to commence a conservatorship proceeding or the State will assume legal authority over the disabled loved one. To avoid losing authority, a parent of a special needs child should contact an attorney to begin a conservatorship over the person and estate prior to the child’s eighteen birthday. If you want to contact a reliable trust and estate attorney in San Diego, CA, reach out to our office today!

A husband-and-wife revocable living trust plan should cost upwards of $4,000, depending on the law firm and the number of sophisticated clauses, such as clauses to protect a special needs child or a disabled spouse. Included in the trust plan is a family trust; a durable power of attorney for both the husband and the wife; a pour-over will for each of the spouses; an advance health care directive; a certificate or affidavit of Trust; and deeds transferring their real property from the parties to the trust. To get more information on this process, contact our will and trust lawyer in San Diego, CA.

A common misconception is that irrevocable trust once created cannot be changed. While that is true of many irrevocable trusts created to avoid taxes, reduce taxes, or avoid taxes, it is not true of all irrevocable trusts you create for the benefit of yourself or others.

A Revocable Living Trust permits a person to maintain full control (as the Trustee) and have access to all the assets (as the beneficiary). An Irrevocable Trust, once created, may prohibit a person’s right to control the trust (as Trustee) or have access to their assets, but you get to decide to what extent.

A typical income-only irrevocable living trust permits the person to have income on the access, but you give up the right to the principal. In some Irrevocable Living Trusts, a person retains the right to change who gets his assets during their lifetime and after his death and maintain 100% of the control of your assets until your mental disability or death. Debtor/Creditor law provides that whatever the person can get, their creditors can get.

If you want to learn more about this topic, contact our wills and probate lawyers in San Diego, CA.

An estate plan, whether a single Will or a Revocable Living Trust Plan, and other legal documents such as Pour-over Will, Advance Health Care Directive, Power of Attorney, etc., once completed, should be reviewed, and kept current. Certain life events such as the birth, death, marriage, or divorce of anyone included in the plan should trigger a review. Additionally, a person would review their plan if there were significant increases or decreases in their finances or if the laws related to their plan change.

Our trust and estate attorney in San Diego, CA can help guide you through this process. Contact us today!

In the past, families would disinherit disabled children or family members and leave assets to someone else who agreed to take care of them. If assets are left to a disabled beneficiary, it could be it could disqualify them from state or federal programs under which they are receiving benefits. 

In 1993 Congress enacted new laws that entitle disabled beneficiaries to derive the same estate planning benefits as non-disabled individuals without affecting their eligibility for state or federal benefits. The law made provisions for supplemental needs trust, which enable a person to leave any amount of money to a loved one who has special needs without affecting their eligibility for the state or federal benefits they receive. The law further provides the trust proceeds must be used to provide luxuries for the disabled individuals he or she would be otherwise received under state or federal law. Luxury can include trips, computers, power wheelchairs, prosthetics, or any other comforts not generally provided by the government.