Saclaw Lib Ca Us Uploads Files Forms Small Estate Affidavit

Post past **vested1** » Wed January 01, 2014 11:xiii am

My parents recently died and left a will splitting all assets between myself and my siblings. My brother and I have decided to cede our inheritance to my ii sisters, who graciously moved in with my parents iv years agone and took care of them until their death. They were both in their 90's and had been married for 71 years. The estate is modest at near 150k - 200k with the sale of the firm and the liquidation of other holding, later expenses. The Country is California. I was surprised that the sale of the house had to go through probate, having been named in the volition, but then I am no skilful on such matters. An estate lawyer is handling the probate at a cost of around 7k depending on how much is realized, with decreasing percentages at certain levels of gain (four% for the 1st $100k, 3% on the 2d $100k, 2% to a higher place that). Just the house is in probate and the profit should be under 100k.

I was wondering if there are taxation considerations or other liabilities that I'm not enlightened of. My sisters are in their lxx'southward and haven't done as well as my brother and I financially, and so that is the other reason for not wanting/needing the proceeds. I'd also like to know if my sisters will owe taxes on the probate sale of the firm since there is no inheritance revenue enhancement in California.

Post past **Abe** » Wednesday Jan 01, 2014 12:39 pm

I am not a lawyer or a CPA, then annihilation I say should exist considered a laymans stance. Allow me say this first: The laws are different depending on the state. If the firm was in your parents name, it probably will have to go through probate. If the other avails laissez passer straight to the heirs, (POD, Life Insurance casher, etc.) you don't demand a lawyer for that. Seven 1000 dollars sounds similar a lot to me just to probate the house. I think I would get some other lawyers stance. Some states have special provisions for small estates. You might want to check into that. As far as tax implications, I believe whoever inherits the house gets the stepped up ground, which means the footing volition be the value of the house at the time of death. Please do not consider this as legal or taxation advise.

Mail past **inaugural** » Wed Jan 01, 2014 12:51 pm

Probate fees in California are statutory. The probate lawyer has no control over them.
They are graduated percentages based on estate value.
This is a good example of why people should accept their property in trust. Probate tin can be expensive.
I doubt there will be estate tax, but the manor lawyer will reply that for you.
(BTW, lawyers are bound by very strict rules of professional person conduct.)
You and your brother are doing a very prissy affair for your sisters, and I'm sure they earned every penny and more than caring for your parents. Nice to run across family unit caring for each other.

Post past **sscritic** » Wed January 01, 2014 12:57 pm

vested1 wrote:The Country is California.

The probate code limit for a small estate affidavit is $50k for real property and $150k total.

"The gross value of all existent property in the decedent'southward manor
located in California, every bit shown by the inventory and appraisal
attached to this affirmation, excluding the real property described in
Section 13050 of the California Probate Code [jointly held or in trust], does not exceed fifty
thousand dollars ($50,000)."

13100. Excluding the holding described in Section 13050, if the
gross value of the decedent'southward real and personal property in this
state does non exceed i hundred l g dollars ($150,000)
and if forty days accept elapsed since the expiry of the decedent, the
successor of the decedent may, without procuring letters of
assistants or awaiting probate of the volition, do any of the
following with respect to one or more detail items of property:
(a) Collect whatever particular particular of property that is coin due the
decedent.
(b) Receive any particular item of belongings that is tangible
personal property of the decedent.
(c) Have whatsoever item detail of property that is show of a
debt, obligation, involvement, right, security, or chose in activeness
belonging to the decedent transferred, whether or non secured by a
lien on real property.

The grade is DE-305 for the real holding. There is no Judicial Council class for the personal property. Simply fill out an affidavit like this one.
http://www.saclaw.lib.ca.us/Uploads/fil ... operty.pdf

Post by **sscritic** » Wed Jan 01, 2014 12:58 pm

countdown wrote:Probate fees in California are statutory. The probate lawyer has no control over them.

The lawyer is free to bill by the hour as an alternative. I consider that control. Really, the command is yours; you lot have to detect a lawyer willing to bill by the hr.

Post by **frugaltype** » Midweek Jan 01, 2014 1:05 pm

inaugural wrote: (BTW, lawyers are bound by very strict rules of professional conduct.)

I'm sorry to say this, and no criminal offense to the attorneys in hither, just in that location are crooked lawyers. They seem to especially prey on elderly individuals and estates.

Mayhap yous tin can observe an attorney who has worked for i of your friends. In whatsoever event, keep a close eye on what is going on, and someone from the family should nourish any court hearings.

Postal service by **WhyNotUs** » Wed Jan 01, 2014 1:23 pm

I have not heard of liabilities to person rejecting bequest. Information technology happens more than one might remember for a diversity of reasons. There could be a timing issue though. I would write a alphabetic character ASAP to the chaser doing probate informing him of your desire to decline and forward a elementary rejection typhoon asking for him to ostend that it is adequate form. If so, sign, notarize, and file with him or court as per his/her direction.

Post past **sscritic** » Midweek Jan 01, 2014 1:27 pm

Peter Foley wrote:Does ceding an inheritance constitute gifting in the eyes of the IRS? I'm thinking nearly my wife and I bypassing each other to go out one-half of our manor to our children.

I think disclaim is the word to use, at to the lowest degree information technology is in google. Here is my unprofessional answer, followed past the reasons. No.

For inheritance purposes, a disclaiming beneficiary is treated as though he or she predeceased the decedent. The disclaimed assets then laissez passer to whoever is adjacent in line to receive them.

if a beneficiary's descendants may inherit the casher's share if he or she predeceases your decedent, an constructive disclaimer will pass the assets to that next generation at no estate or inheritance tax cost to the disclaimant. The estate will have a transfer subject to generation-skipping transfer (GST) tax.

Note the second. If you disclaim an inheritance from a parent and the money goes to 1 of your children, the parent's manor is subject to GST tax. If the money was treated as coming to you then being a gift from you to your child, the GST tax would not come into play. Since information technology does, you didn't get it and you lot didn't requite it abroad. Per the first quote, you didn't be (yous were already expressionless).

P.S. Why practise you lot need to disclaim? If you want coin to go to your children, give money to your children. My father is leaving my share to my children. He is not leaving it to me to disclaim. Why bother with the extra stride?

Midweek January 01, 2014 two:26 pm

sscritic - thanks for the response, and I might add I'm really happy to see you lot back.
Non wanting to hijack the initial thread, here are my thoughts about spouses bypassing each other: Minnesota has an inheritance revenue enhancement that starts at $1M. Information technology too has gift tax with a lookback provision. While these are not issues with the passing of a spouse, the heirs of many surviving spouses will likely be subject area to pay the taxation. I'll look into the GST. A better choice might be to designate a specific asset that will pass to children rather than a spouse. A 401k account could accept children as primary beneficiary, for case.

In add-on, my wife's parents are both in their mid ninety'due south. Their mental country (vigil) is such that no one should be talking to them about irresolute their wills at this bespeak. Nosotros would dear to have my wife's share pass to our children instead of to her. Disclaiming could be an pick here.

Post by **inaugural** » Wed Jan 01, 2014 2:30 pm

Sscritic.....the estate is stated to be $150-$200k after all expenses etc. It is likely gross value was higher and information technology didn't qualify for small estate administration or it likely would take been done.

In that location are always boosted facts which change scenarios.....but the brothers should ask of several CA manor lawyers to confirm the law and procedure and THIS instance.

Aye, most regrettably, there are crooked lawyers, cpas, engineers, doctors, plumbers, teachers, civil servants.......pick a profession.

Post by **countdown** » Wed January 01, 2014 3:01 pm

Teachable Moment: Again, the family could take avoided probate by seeing an estate lawyer earlier the fact, creating a unproblematic trust, and passing the holding to the sisters, all at far less cost than the stated fees.

Lesson for all of united states of america: maybe skilful thought to include family members in estate discussions. Depends on family.
90 yr old parents, lxx year old kids, two financially independent.....intended/best estate programme probably clear x-20 years agone.

We can all be penny-wise and pound foolish.

Post by **expat** » Midweek Jan 01, 2014 3:13 pm

Teachable Moment: Again, the family could have avoided probate by seeing an estate lawyer before the fact, creating a elementary trust, and passing the property to the sisters, all at far less price than the stated/fees.

Not necessarily.

The trust document could permit the trustee to accept a fee. The trustee will most likely need assistance from a lawyer, CPA etc which volition add to the cost.

And you could end up with a dishonest trustee.

Post by **manwithnoname** » Wednesday Jan 01, 2014 3:37 pm

sscritic wrote:

Peter Foley wrote:Does ceding an inheritance constitute gifting in the optics of the IRS? I'one thousand thinking nearly my wife and I bypassing each other to leave half of our estate to our children.

I think disclaim is the word to use, at to the lowest degree it is in google. Here is my unprofessional answer, followed by the reasons. No.

For inheritance purposes, a disclaiming beneficiary is treated as though he or she predeceased the decedent. The disclaimed avails then pass to whoever is next in line to receive them.

if a beneficiary'southward descendants may inherit the beneficiary'south share if he or she predeceases your decedent, an effective disclaimer will pass the assets to that next generation at no estate or inheritance taxation cost to the disclaimant. The estate will have a transfer subject to generation-skipping transfer (GST) tax.

Note the 2nd. If you disclaim an inheritance from a parent and the money goes to one of your children, the parent'southward manor is field of study to GST tax. If the coin was treated as coming to you and and then existence a souvenir from yous to your child, the GST tax would non come into play. Since it does, you didn't get it and you didn't give information technology away. Per the first quote, you didn't exist (yous were already dead).

P.S. Why practice you demand to disclaim? If you want money to go to your children, requite money to your children. My father is leaving my share to my children. He is not leaving it to me to disclaim. Why bother with the extra step?

Federal GST tax exempts $5.25 one thousand thousand which excludes 99.8% of all estates from the GST tax.

Post by **sscritic** » Wed Jan 01, 2014 iv:03 pm

manwithnoname wrote: Federal GST tax exempts $5.25 million which excludes 99.8% of all estates from the GST tax.

Which is irrelevant to the logic of whether the $ten million from the grandparent disclaimed past the child is a gift from the child to the grandchild. The logic is exactly the same if the amount disclaimed is $10.

Mail past **manwithnoname** » Midweek Jan 01, 2014 4:04 pm

Peter Foley wrote:sscritic - thanks for the response, and I might add together I'1000 really happy to encounter you back.
Not wanting to hijack the initial thread, hither are my thoughts about spouses bypassing each other: Minnesota has an inheritance tax that starts at $1M. It also has gift taxation with a lookback provision. While these are not issues with the passing of a spouse, the heirs of many surviving spouses volition likely exist subject to pay the revenue enhancement. I'll look into the GST. A amend option might be to designate a specific asset that volition pass to children rather than a spouse. A 401k business relationship could accept children equally principal casher, for example.

In addition, my married woman'south parents are both in their mid xc'south. Their mental land (vigil) is such that no one should be talking to them about irresolute their wills at this signal. We would honey to have my wife's share pass to our children instead of to her. Disclaiming could be an option here.

MN gift revenue enhancement exempts first $1M from gift tax. Out of state gifts are exempt as are transfers to spouse or charities.

http://world wide web.revenue.land.mn.united states/Certificate ... erview.pdf

MN gift tax rate is 10% which is pretty steep. Simply other state with gift tax is CT.

Post by **sscritic** » Wednesday Jan 01, 2014 4:06 pm

countdown wrote:Sscritic.....the manor is stated to be $150-$200k later on all expenses etc. Information technology is likely gross value was higher and it didn't authorize for small-scale manor administration or it likely would have been done.

Agreed. Another poster mentioned small manor administration. The OP mentioned CA. I was just laying out some of the rules for CA.

Post by **vested1** » Wed Jan 01, 2014 4:28 pm

Thank you for all of your replies, and yes, I agree that a trust would have been more efficient and less costly. Thank you too for the reading recommendations which I will surely take advantage of.

My parents were never wise with money, didn't inquire for and wouldn't have any communication. Ironically, they never blended their finances with each other and kept the amount of reserves that each had a complete mystery from each other. The passing of my father at 92, a year before my mother at 90, left her somewhat at sea as to what she would be left with from him to survive, which other than the firm amounted to nothing. Their instance helped teach me what not to do.

They gave far more than to charity and their church than they ever did to their children, which is probably as it should be, and was after all their choice. Since I never expected an inheritance it was even easier to cede my portion to my sisters, which is their due in my opinion. Evidently there is a form that I need to sign to arrive legal.

My married woman and I prepare a trust many years ago to spare our children the problems inherent with probate. My blood brother and my wife's brother are the trustees of our Family unit Trust, and we take faith in their integrity while dealing with the distribution of our avails without personal gain. As a side annotation my wife and her brother care for their 90 year old female parent so dedication to family runs deep on both sides.

As for the lawyer, my eldest sister retained her, and although she came highly recommended the fee did seem a flake high for dealing solely with the house and the matter of probate. This of grade coming from a position of (almost) consummate ignorance. I am the youngest, and experience somewhat beholden to tradition when bowing to the judgement of my older siblings, while voicing my opinion when necessary. Death, and the disposition of worldly goods can bring out greed even in the closest of families, which thankfully hasn't been a factor in our case.

I will consider all of the responses here to make sure there are no surprises.

Post by **vested1** » Wed Jan 01, 2014 4:49 pm

Equally another side note, the house has been on the market for one week and there are 2 offers at well-nigh the request price. Personally, if I would have bought the place I would have remodeled with a bulldozer. It seems the real estate frenzy is dorsum on in California.

Post by **vested1** » Wednesday Jan 01, 2014 5:23 pm

countdown wrote:Probate fees in California are statutory. The probate lawyer has no control over them.
They are graduated percentages based on manor value.
This is a proficient instance of why people should have their property in trust. Probate can exist expensive.
I incertitude there will be estate taxation, but the estate lawyer will reply that for you.
(BTW, lawyers are leap past very strict rules of professional conduct.)
Y'all and your brother are doing a very nice affair for your sisters, and I'chiliad sure they earned every penny and more caring for your parents. Prissy to encounter family unit caring for each other.

Nosotros were told that the probate fees would be around i.5k, which doesn't include the 7k lawyer fees.

Post past **bsteiner** » Wed Jan 01, 2014 v:34 pm

If you disclaim (waive) some or all of your share, it'southward not considered a gift, assuming you disclaim within 9 months of death, and before accepting whatever benefits from the disclaimed belongings. However, if you disclaim, you can't specify how the disclaimed holding passes. Unless the Volition provides otherwise, it passes as if you predeceased the decedent. If that'southward not practical, and you instead take your share and requite it to your sisters, some of it (or all of information technology if you're married and your spouse consents to gift-splitting or you spread the gifts over two years) will be covered by the $14,000 per donee gift tax annual exclusion.

You lot probate the Will, not the avails.

California has a statutory schedule of attorneys' fees for estates. Courtroom approval is needed to charge more. We've been able to find lawyers in California who volition handle estates on a time footing, which normally comes out to less than the statutory schedule. However, in this case, the manor is so small that it might be difficult to get someone to handle information technology on a time basis who could practise it for less than the statutory schedule. It's as much piece of work to probate a Will for $150,000 estate as for a $150 one thousand thousand estate, and it'southward about as much work to handle the sale of a $150,000 house equally for a $one.v one thousand thousand house. We wouldn't take on a $150,000 estate either on a time basis or for a fee equal to the California statutory schedule absent an important relationship with the client or the client's family.

A revocable trust wouldn't have saved much. The work involved in creating the revocable trust and transferring the assets to the trust is oftentimes nearly the same as the work to probate the Will; and the piece of work involved in selling the house is the same regardless of whether it's in a trust.

Mail service by **dm200** » Wednesday Jan 01, 2014 5:35 pm

I believe the term for what yous want/programme to do is "disclaim". I likewise understand that in that location are (or may be) some of import things to do (or not practise) if yous plan to disclaim - so I would check out the details. I believe that if yous disclaim an inheritance, that is identical to not every having been named in the will.

Every bit to chaser fees and probate - I practise not know (or have any experience with) California estates/probate. Notwithstanding, there were two manor situations of family unit members in NY Land where my brother was the executor (both deceased had wills). In both cases (1 had real estate holdings), the costs of probate were low because my blood brother did most of the work himself and only engaged an chaser for those things that either he could not do or that actually required an attorney to do. He paid the attorneys only for what the attorneys actually did (Non a percentage of avails or the 'manor', etc.)

Post past **Steelersfan** » Wed January 01, 2014 v:53 pm

Exist certain the will doesn't state that if one of the children is deceased and so that child's share goes to their children. Look for the words "per stirpes". If information technology does, and so if you or your blood brother sacrifice (disclaim) your share, it will go to you lot or your blood brother's children, if you accept any.

Post by **vested1** » Wednesday Jan 01, 2014 v:57 pm

bsteiner wrote:If you disclaim (waive) some or all of your share, information technology's not considered a gift, assuming y'all disclaim within 9 months of death, and before accepting any benefits from the disclaimed property. However, if you disclaim, you tin't specify how the disclaimed belongings passes. Unless the Will provides otherwise, information technology passes every bit if yous predeceased the decedent. If that'due south non applied, and you instead take your share and give it to your sisters, some of information technology (or all of it if yous're married and your spouse consents to gift-splitting or you spread the gifts over two years) will be covered past the $fourteen,000 per donee gift tax annual exclusion.

You probate the Will, not the avails.

California has a statutory schedule of attorneys' fees for estates. Court approval is needed to charge more. Nosotros've been able to find lawyers in California who volition handle estates on a time basis, which usually comes out to less than the statutory schedule. However, in this case, the estate is and then small that information technology might be difficult to get someone to handle it on a time basis who could do information technology for less than the statutory schedule. Information technology'due south every bit much piece of work to probate a Will for $150,000 estate every bit for a $150 million estate, and information technology's almost every bit much work to handle the sale of a $150,000 house as for a $ane.5 million house. We wouldn't take on a $150,000 estate either on a time basis or for a fee equal to the California statutory schedule absent-minded an important relationship with the customer or the client's family unit.

A revocable trust wouldn't have saved much. The work involved in creating the revocable trust and transferring the assets to the trust is often about the same as the work to probate the Will; and the piece of work involved in selling the house is the aforementioned regardless of whether it'south in a trust.

I ever value your input and advice. I will make sure that my brother knows this and that there is a nine month time limit on disclaiming an inheritance.

Post past **dm200** » Wed January 01, 2014 ten:37 pm

I always value your input and communication. I will brand sure that my brother knows this and that there is a 9 month time limit on disclaiming an inheritance.

While at that place may be a 9 calendar month window to "disclaim", I believe there are (or may exist) other restrictions - such as certain deportment being taken related to the assets in the manor. And then, if "disclaiming" is an important option for y'all, I suggest making sure that zippo would block such an option.

Post by **dickenjb** » Thu Jan 02, 2014 viii:29 am

If your disclaimer would result in your share going to your children and not your sisters, some other selection is to non disclaim and you and your married woman write checks to your sisters up to $14K per year.

Post past **KyleAAA** » Thu Jan 02, 2014 8:55 am

dickenjb wrote:If your disclaimer would outcome in your share going to your children and not your sisters, some other option is to not disclaim and yous and your wife write checks to your sisters upwardly to $14K per year.

This is probably what I would practise in this situation. Since the amount y'all would be disclaiming is relatively small, yous could take care of it in just a few years' worth of "Christmas presents." Seems simplest for all involved.

Thu Jan 02, 2014 two:04 pm

I've done this twice. The first fourth dimension well before the event by letter, the second time by handwritten note at the funeral. No problems noted. Think I said something like, "... I renounce whatever inheritance from the manor of...".

Saclaw Lib Ca Us Uploads Files Forms Small Estate Affidavit

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