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Will & Probate

Areas of Practice:

Power of Attorney
Elder Law
Asset Protection
Estate Planning in San Jose
Health Care Directive

Professional Affiliations

JDSUPRA - Your Legal Intelligence

Member of the State Bar of California

Santa Clara County Bar Association

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Think of will as a contract….between you and the State of California. And with you gone, the State has to make sure that your wishes are carried out. This process is called Probate. This means that courts are going to spend many months looking over the lifetime of your activities, relationships, survivors, wills, etc. The beneficiaries under the will get the assets at age of 18, regardless of whether they are capable of managing them or not. The probate process typically takes about one year to get through, sometimes a lot longer. The entire process is burdensome, eliminates any privacy you ever had and costs lot of money. And the longer the probate is open the more likely that some unhappy person will bring up a challenge, thus prolonging the nightmare even further. You may have to sell family home or other assets to pay probate fees. These fees are computed on the gross value of the estate, i.e., prior to deducting any mortgages and other debts. Now, isn’t this the ultimate in fairness?! To pay fees on the debts! Don’t despair though, because the probate nightmare is totally avoidable. The probate fees are presently set as follows:

Estate Size Fee
100,000 $ 4,000
300,000 $ 9,000
500,000 $13,000
700,000 $17,000
900,000 $21,000
1,000,000 $23,000
2,000,000 $33,000
4,000,000 $53,000

The fees frequently run higher as the complications are likely to occur during the lengthy probate process. And the opportunity to challenge a will in court are numerous. Remember my earlier warning about the limitless imagination of the legal profession!
On the bright side, you presently get to deduct $1,500,000 from your estate (estate tax exemption) before computing any estate tax. Suppose you’re married and your spouse leaves the assets to you outright in the will. Upon your death you deduct $1,500,000 from your assets as an estate tax exemption. What happened to your spouse’s exemption? Well, it got LOST. Unfair? You bet. On how to avoid this and get both exemptions (two for the price of one) you deserve see the section on Revocable Trusts.