iStock_000016348240XSmall-FAQ'sThe Kiken Group, A Professional Corporation, serves as probate attorneys in Orange County and Los Angeles County, California and beyond.

In answer to your inquiries, we have assembled this collection of responses to questions we have received from clients over the years.  Rather than seek an attorney consultation, you may find the answer to your basic questions below.

What is Probate? Probate is a legal proceeding to identify a deceased person’s assets that are not held in a trust, to pay the outstanding indebtedness, and then to distribute the assets to beneficiaries designated in a will or by the State’s laws of intestate succession.

What is a Probate Attorney?  A probate attorney, sometimes also called an estate and trust attorney, represents parties concerning Probate of a Will or Intestate Estate, a Trust proceeding, a Conservatorship, a Guardianship, a Durable or Irrevocable Power of Attorney, an Advance Health Care Directive, or an Adoption, or a related proceeding.  The probate court also employs attorneys who may be referred to as a “probate attorney” or “probate examiner” who review court filings for the judge and issue notes identifying issues raised and defects that may exist in the filed documents.

What is a revocable trust?  A revocable trust, also known as a “living trust” or “revocable living trust” is an estate planning tool providing for protection and management of your assets during your lifetime, and providing a smooth transition for management and distribution of assets to beneficiaries in the event of your disability or death.  Absent some kind of contest or court ordered removal of a trustee, a revocable trust also avoids making public your family affairs and assets as would occur in the probate process.  The hallmark of a revocable trust is the ability for it to be revoked or amended during the lifetime of the person who established it (known as the “grantor,” or “trustor” or “settlor”).  The “trustee” is the individual(s) or corporation(s) that manages the trust assets in accordance with the provisions set forth in the trust agreement for the benefit of each person or entity intended to benefit from the trust (its beneficiary or beneficiaries).

What is an irrevocable trust?  An irrevocable trust is a trust that cannot be revoked or amended after its creation.

What is a will?  A will is a writing expressing some testamentary intent that satisfies the requirements of Probate Code §6110 because it was either signed by the testator (the person making the will) or the testator’s name was signed by some other person in the testator’s presence and by the testator’s direction, or by a conservator pursuant to a court order to make a will.  At least two persons must also sign the document stating that they have either witnessed the testator sign the will or jointly witnessed the testator acknowledging the signature on the will as his/her own and the testator acknowledging that the document signed is the testator’s will.  If the will was not properly executed or witnessed, a court may still treat the will as if it was executed in compliance with the Probate Code if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute his/her will.

What is a “holographic will?” To qualify as a holographic will, a document, whether or not witnessed, must bear the signature and the material provisions must be in the handwriting of the testator.  If a holographic will does not contain a statement as to the date of its execution and its provisions are in conflict with another will by the same testator, the holographic will may be found to be invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.  In addition, if it is established that the testator lacked testamentary capacity at any time during which the holographic will might have been executed, the holographic will may be determined invalid unless the court determines that it was executed at a time when the testator had testamentary capacity.  Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.

How much are the statutory fees for probate?  Probate Code §1080 schedules statutory attorneys fees for a probate as follows:  4% of the first $100,000 of the gross estate, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, 0.5% of the next $15,000,000, and allows the court to determine the fee for the portion of an estate greater than $25,000,000.  As an example, the statutory attorney fees for probating an estate with a gross value of $300,000 would be $9,000 ($4,000+$3,000+$2,000).  Be mindful that attorneys may also be entitled to extraordinary attorneys fees for certain additional services.

How much is the statutory fee for an executor or administrator?  The executor or administrator of an estate receives the same statutory fee as is calculated for the attorney statutory fee.

What is an Advance Health Care Directive?  Your Advance Health Care Directive grants your agent power to carry out your written instructions to your physician, family and friends concerning your health care preferences, including the types of special treatment you want or don’t want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation, the disposition of your remains, and organ donation.

What is a Power of Attorney?  Your Power of Attorney provides written instructions appointing another person or legal representative to whom you grant legal permission and authority to act on your behalf.

What is a Durable Power of Attorney?  By executing a Durable Power of Attorney you appoint another person or legal representative whose authority to act on your behalf will not end due to either the passage of time or your incapacity.

What is a will contest?  In a California will contest, an heir or beneficiary or possible heir or beneficiary, or other interested party asks the Probate Court to invalidate a will or a document suggested to be a will, in whole or in part, based upon lack of lack of compliance with procedures for the creation of wills, lack of capacity, undue influence, fraud, duress, menace, or mistake. 

What is a trust contest?  In a California trust contest, a beneficiary or heir, or potential beneficiary or heir,  or other interested party asks the Probate Court to invalidate a trust, in whole or in part, based on lack of capacity of the person or persons who established the trust, or undue influence, fraud, duress, menace, or mistake in the making of the trust.

What is Elder Abuse?  In California, abuse of elders (defined as persons 65 years and older) can be criminal and/or civil in nature.  Civil law defines Civil Elder Abuse to mean physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. It also means the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.  Criminal Elder Abuse occurs when a person knows a person to be an elder, willfully causes or permits any elder to suffer, or inflicts unjustifiable physical pain or mental suffering on the elder, or when a person willfully causes or permits the elder to be placed in a situation in which an elder’s health is endangered.

What is a Developmental Disability?  A “developmental disability” is a disability that originates before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely, and constitutes a substantial handicap for the individual and includes intellectual disability, cerebral palsy, epilepsy, autism, and handicapping conditions found to be closely related to intellectual disability or to require treatment similar to that required for individuals with an intellectual disability, but does not include other handicaps that are solely physical in nature.

What is a Conservatorship?  A Conservatorship is a probate court proceeding where the court appoints a person to manage the person and/or estate of an adult who lacks capacity or has a developmental disability.

What is a Limited Conservatorship?  A Limited Conservatorship is a probate court proceeding where the court appoints a conservator to protect the person and/or estate of a person with a developmental disability.

What is a Guardianship?  A Guardianship is a probate court proceeding where the court appoints a guardian for the protection of the person and/or estate of a minor.