1564 First Street, Napa, CA 94558 • 707-252-8644 • onecal1@saber.net
PROBATE PRACTICE
“Probate” . . . it’s a word little understood and often feared. Indeed, back in the late ‘70's, a movement began in the legal profession, oriented toward avoiding the probate process whenever possible, in favor of what was marketed as a far less complicated and expensive means of passing on property after death - the living trust. As things have worked out, the cure has often been worse than the disease. While the laws relating to wills and the probate of estates has remained relatively little changed for centuries, the procedures relating to trusts have become ever more complex and expensive. Eliminating court supervision over the process of winding up the affairs of a lifetime, and seeing to the orderly and timely distribution of assets to intended beneficiaries, led to predictably excessive delays and dishonesty when there was “no one left to guard the chicken house.”
Don’t get us wrong, we believe in the use of living trusts, and often employ them for our clients. But first and foremost, we believe that it is our job, both in estate planning and in post mortem asset management and distribution, to ‘engineer’ the most cost effective and efficient solution to the particular facts of a client’s situation. Thus, we are always looking for ways to avoid probate, whether it be by the use of a trust, or by some other far more simple and inexpensive means. For instance, by the use of a Revocable Gift Deed Reserving Life Estate, it is possible for parents to pass real property, upon their death, to their children without any further legal intervention, (i.e. no probate or other fees); preserving a 100% step-up in the value of the property ( i.e. the value of the property on a re-sale by the children would be the value on the date of the parent’s death - meaning no tax at all in most cases); keeping the property tax at the same amount as paid by the parents; and still allowing the parents to borrow money on the property during their lifetimes, or even to cancel the deed and sell the property.
We like to say that we are “real lawyers for real people.” We try hard to avoid the complex legal jargon that can be so intimidating. By treating our clients the way we hope that they would treat us if our roles were reversed, we are often able to find creative ways to simplify and shorten the process of planning for and passing on assets after death. In cases where probate is the best answer to the problem, we take satisfaction in completing the entire process in the minimum amount of time legally possible - usually within six months from the date of death. As a final bit of hopefully useful and comforting information, you should know that probate fees are set by statute - averaging about 2.6% for estates up to a million dollars, and the rate drops to one percent when the estate reaches a million dollars in value.
