(510) 556-1876 amalinis@malinislaw.com



Wills & Trusts

Revocable Living Trusts, Irrevocable Trusts, Special Needs Trusts, Life Insurance Trusts, Guardianship nomination for minor children.

Powers of Attorney & Health Care Directives

Financial Powers of Attorney, Advance Health Care Directives, Appointments of Agents and Nomination of Conservators in the event of incapacity.

Post Death Administration

Probate (with or without a will), Trust Administration, Spousal Property Petitions, Non-probate transfers.

Estate Planning

Estate planning tailored to each client’s financial and personal situation, estate planning with retirements benefits, business succession planning.

Frequently Asked Questions (FAQs)

(1) What is Estate Planning and Estate Administration?

Estate planning is making a plan to manage an individual’s assets and provide for the disposition of such assets before and after an individual’s death. Estate planning is beneficial for many people who have a home, retirement accounts, bank accounts, investments, or small businesses (among other things), and children.

It may be a simple one: protecting and managing your estate and planning for personal and health care decision in the event of incapacity or illness; it is also used for distributing your assets at your death. Your estate plan may be more complex because there are other variables involved. For instance you might need to have a business succession plan or  arrange retirement benefits in irrevocable trust to reduce estate taxes, or provide for a child or parent who has a disability.

Estate Administration involves managing the affairs after someone dies. This is typically done by a successor trustee (if you have a trust), or an executor or personal representative of the estate (if you die with a will or without one). This process includes three broad actions: (1) asset collection, inventory and appraisal; (2) collecting and paying debts and taxes; and (3) distributing the remaining assets to beneficiaries. The process may vary depending on the particular situation, such as whether you have a trust, a will, or neither (intestate) and whether or not it is subject to the jurisdiction of a probate court.

(2) Where can I find additional resources about wills, trusts, and probate?

(3) What is the cost of an estate plan?

Estate planning encompasses far more than writing a will or trust. A competent, knowledgeable  estate planning attorney will coordinate an individual’s long-term and end-of-life plans, which might include life insurance plans, retirement plans, funeral plans, and heath care plans. Since each client’s financial and personal situation and  goals vary, the cost for estate planning may vary between clients. The attorney may charge a flat fee for an estate plan package, an hourly fee if it involves additional, more complex legal issues to address and resolve, or a combination of both.

(4) What is a will?

A will is a document that explains your final wishes. It is also used to name executors, nominate guardians for minor children, leave instructions as to how debts and taxes will be paid, pour over properties (real and personal properties) into a revocable living trust. A will must be admitted into probate.

(5) What is a Revocable Living Trust, and do I need one?

Revocable Living Trust is an instrument that can be created during your lifetime, that enables you to manage your assets during your lifetime and  pass down your assets upon death without going through probate. Benefits of a living trust include having the ability to change or revoke the trust while living, maintaining your privacy after death since there is no public record required in administering a trust, minimizing tax implications, and avoiding probate, which can often be an expensive and lengthy process. Because a person’s personal, financial, and family situation varies, each trust should be tailored to an individual’s ultimate goals.

(6) What happens to my assets if I don’t have a will or a trust when I die?

If you die without a valid will or trust, you die intestate. Dying intestate triggers the intestate succession law in California as to how a decedent’s assets is distributed and who stands to inherit the assets. As such, your heirs (children, parents, other relatives) must go through probate if decedent’s gross assets exceeds $150,000. Probate court follows the distribution of assets under state law. This distribution scheme under state law, as explained on this link, may not be what you want especially if you have children from a previous marriage that you wish to provide for fully, or you want to exclude certain family members from inheriting part of your assets.

(7) What is probate?

Probate is a court proceeding that results in validating a decedent’ s will or determining that he or she died without one. An heir or beneficiary will have to go through the probate process to determine what assets are left to him/her. The following are the cost to probate for one with a will or if one dies intestate for assets over $150,000. The current rates based on the gross value of the decedent’s estate appraised at the time of death. Cal. Probate Code §§ 10810, 10811.

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9 Million
  • 0.5% of next $15 Million
  • Reasonable amount of $25 Million

However, small estates, depending on the type of property and the size, can be administered informally, without court proceedings. First instance, a beneficiary who stands to inherit assets (real and personal property) value of $150,000 or less can use a simplified affidavit or declaration pursuant to Probate Code section 13100 et. seq., in which no court involvement is required.  Also, real property valued at less than $50,000 can also be transferred by affidavit. Cal. Probate Code §§ 13200 – 13210. Additional information about simplified probate procedures is found here.

Retirement benefits usually use beneficiary designations to determine who is entitled to the benefits upon death of the owner. Accordingly, benefits will go directly to the beneficiary, and will avoid probate. However, the beneficiary designations should be updated whenever there are life changes, such as divorce, or death of beneficiaries.

Finally, Joint Tenancy or Community Property designations are also a very popular probate avoidance device; however, they do have some limitations that may conflict with your personal objectives. It is best to consult with a knowledgeable estate planning attorney on this matter.

(8) What is a Financial Power of Attorney?

A financial power of attorney is a legal document that authorizes someone else to step in and handle your financial matters in the event you become ill or incapacitated. This authorization can be short term or long-term and can avoid the involvement of the court.

(9) What is an Advance Health Care Directive?

Advance Health Care Directive is a written instruction that explains your medical treatments and end of life decision in an event of an individual’s incapacity; it also designates a person to carry out your wishes and inform doctors, family, friends of your end-of-life preference. Your Advance Healthcare Directive should be given to the doctor and hospital, as well as to trusted family members and friends.

(10) I had my estate plan done many years ago, do I need to update it?

Yes.  Since laws are constantly changing and and one’s life is ever changing (dependents may change, assets may change, and views on life might change), you should probably review and update your estate plan several times during the course of  your life.

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