PRACTICE AREAS

Estate Plans

Estate Planning Service Details


Classic Estate Plans Our standard estate plans include:

  • Trust or Trusts
  • Wills
  • Advance Health Care Directive
  • Durable Power of Attorney Over Finances
  • Special Needs Trusts (no extra fee),
  • Guardianship Nominations
  • Child Care Power of Attorney (special provisions for international families
  • Trust Funding Support
  • Ordering and Recording your Deeds
More Complex Stuff
  • Post-marital Agreements/Transmutation Agreements
  • Step-parent or Adult Adoptions,
  • Separate Property Trusts
  • Tenancy-in-Common Agreements
Stuff for Other Attorneys - Big Estates with Few Deductions (>$10M) Our firm does not create irrecovable trusts for the purpose of reducing your gross estate for inheritance tax purposes. This is usually not the strategy a client wants to use, but sometimes it is the best plan and we refer those clients to firms that focus on those issues. Please feel free to book a call with us if you are not sure if we are the right fit or not. If we cannot help you, we can get you pointed in the right direction.




What to Expect


An estate plan can be as easy as One, Two Three. If that sounds hard, choose our one-and-done option, also known as the Super Simple Plan. 1- Book an Appointment. We will send you an intake form. You don't have to fill it in. In response to a couple of client concerns about intake forms:

  • The intake form does not have to be completed before the meeting. It is helpful if you can fill in your basic family information, but the rest is really there so you know what you will be asked.
  • Clients do not need to worry about providing exact account numbers, deeds or other documentation at the meeting.
  • You do not need to bring any private data like social security numbers, bank account numbers, or deeds.
2 - Attend Your First Meeting, Review Your Drafts We will go over what will be in your plan, what decisions you want to make, answer your questions, and send you with a list of any remaining decisions or homework items. We will send you drafts. You don't have to read the whole thing, just the parts in BOLD AND UPPERCASE. The rest of the reading is optional. 3 - Attend Your Final Meeting, Do a Bit of Homework At the next meeting, we review the documents and make any necessary updates or changes. The attorney will discuss a few follow-up items with the client such as beneficiary designations and how to manage the trust moving forward. You are done! You can put the plan in a drawer and not worry about it for a while. We will check back every five years to see if anything needs updating and let you know if we have any specific concerns. Most clients will update their property list, but otherwise have a plan that lasts many years. Does this sound like too many steps? We can make it easier. For clients who know what they want and don't need to spend much time learning about the process - we offer a Super Simple Plan. To use this service the client completes their intake form prior to the meeting, and we review the intake, the documents, and go over the maintenance of your trust all in one meeting. If you want to take advantage of this process. Please book our calendar option for the Super Simple Plan.




Why Summerall Law?


Why should I use Summerall Law instead of another firm? The primary complaints that we hear about other practices are that the attorney seemed uninterested in completing the plan, or the process was too complicated, expensive, or burdensome for what the client needed. We have listened to these complaints and we run our practice differently. Clear and User-Friendly Process The primary distinction between our practice and other practices is that we do a lot of estate planning and we have fine-tuned our process accordingly. Our process is bettter because:

  • It requires little documentation from clients,
  • We have a quick turnaround time,
  • Our documents are easy to understand,
  • We have well-developed instructions on how to maintain a trust,
  • We have online search services to obtain your deed, and
  • We work well with insurance providers.
Attorney Attention Many attorneys try to save time in the estate planning process by having a paralegal meet with the clients. We have found the best way to avoid the back and forth of edits and revisions is for the client to meet directly with the attorney and then for the attorney to promptly prepare and provide a draft estate plan to the client that is very close to the final product. This process allows our clients to feel confident that they understand what they are signing and that it is representative of their wishes. We like meeting with clients and hearing about what is going on in their lives and helping them make informed decisions. It is why we do what we do. Sensible and Predictable Fixed-Fee Billing. Many attorneys use traditional billing structures based on charging hourly rates for estate planning services and for follow-up questions. We have seen these rates and final bills be that seem extraordinary considering the circumstances and they keep the client from wanting to ask simple follow up questions - i.e. $7,000 for an amendment, or $1,000 per year in maintenance fees. We use a fixed-fee structure that allows for unlimited follow up questions. We beleive this makes for the most peaceful and harmonious planning process.




Why do I Need an Estate Plan?


1. In California the primary benefit of estate planning is avoiding the time and expense of transferring assets through a probate proceeding. Probate is the legal process required to transfer the assets of a person who passed away and had no estate plan or had only a will. 2. Due to court crowding and California legal requirements, the average time it will take your beneficiaries to receive assets when the probate process must be used is one to two years. In many cases it takes three to five years. 3. Plus, the attorney who handles the probate proceeding is paid on a percentage fee basis in probate court. This means that for a family with a million dollars in gross assets (no deduction for mortgage balances or other loans) that attorney’s fees will be a minimum of $25,000. 4. In contrast, individuals who have an estate plan with a trust get to avoid probate and use the trust administration process which typically takes only six months to a year and typically costs just $5,000. 5. There are many other reasons why it is very important to complete estate plans, such as making sure children don’t inherit assets when they are too young to make good life choices, avoiding Medi-Cal liens on real property, expressing your preferences in who should be involved in the management and distribution of assets, selecting a guardian for minor children, and avoiding gifting to individuals with physical or mental disabilities in a way that causes them harm (either by making it impossible or complicated for them to maintain eligibility for public benefits or by tasking them with the management of finances in an unrealistic manner). 6. While inheritance tax issues are typically not an issue for individuals with less than $10 million dollars in assets, there are property tax basis issues and capital gains tax issues that may need to be addressed.




Fees


We offer flat-fee services based on the complexity of your plan. More information about fees is available on this our Fees Page.





Probate & Trust

What Our Service Includes


A probate administration is the legal proceeding necessary to transfer the property and assets of person who has died when that person died without an estate plan – either without a will, or with a will but without moving important property into a trust – and there is no other automatic means of transferring the property such as having property jointly titled or having a beneficiary designated on the account that holds the property. While there are some differences between the probate process when someone dies without a will as compared to when someone dies with a will, but without a trust, because the processes are so similar we treat them similarly and have described them together here. Trust administration is a more straightforward and less time-consuming process for transferring property that is held in a trust according to the requirements of the trust. We help the trustee complete their legal duties and distribute the trust assets to the people identified in the trust. There are 3 basic elements to our probate administration services: 1. Taking Advantage of Any Non-Probate Transfer Options As part of our services, we first explore if there are any solutions available that will allow the property to be transferred outside the probate process. For more detail, please see the Frequently Asked Question here: What options exist for transferring property outside of probate? Using these strategies reduce your fees and help beneficiaries get access to property more quickly. If there are not any meaningful alternatives, we will start the probate process. 2. Selecting an Administrator – What to Do When There is No Will If the estate is that of a person who had a will, that will likely identified the person who will be the executor of the estate – the person that collects and distributes the property and winds up the affairs of the person who has passed (including paying debts and settling legal claims). If your probate services are for a person with a will, you get to skip this step, unless there are unique issues to discuss. If there was no will then the first thing the family needs to decide is who will be the administrator – that is the same thing as an executor, it is just the term you use when there was no will. The administrator also has a responsibility to keep the beneficiaries – the people potentially entitled to receive estate property – updated on the status of the process. For more detail on choosing an administrator, please see the Frequently Asked Questions section below: What do we need to think about in selecting an administrator for an estate? 3. Probate Administration in Court This is the tough part. We help the executor or administrator understand their duties, complete the necessary steps, and navigate the judicial process. We have described this process in more detail in the next section (What to Expect).




What to Expect


The Probate Process (and Some Comparisons to Trust Administration) The probate process is difficult, but with the help of a caring advocate it can be slightly less painful. Sarah often tells clients, in a half-joking manner, that the difference between probate and trust administration is that probate is like signing your family up for an IRS tax audit after your death while trust administration is more like asking them to file a tax return. Legally, probate and trust administration are supposed to be exactly the same thing except that in probate the court oversees the process. Practically, this means that in probate your family must comply exactly with the local rules regarding how forms are filled in, follow an intricate step-by-step process, account for every cent in the estate, and be prepared for the entire proceeding to be held up for several months if the court has any questions or a document is returned a day late. In trust administration, the rule is more: if everyone is in agreement, then you can move forward. Since you are not waiting on the court’s availability and permission, it is much faster and easier to move the case along. Generally, the probate process works like this: 1. Opening of Probate. A petition (court lingo for “request”) for probate is filed with a request to approve or appoint an administrator. The petitioning (requesting) party sends notice to all the beneficiaries. 2. Administrator Gives Notice. The administrator publishes notice in the local newspaper and notifies all the beneficiaries of their intent to administer the estate. 3. Hearing to Appoint Administrator. There is a hearing where the judge reviews the petition and if no one objects, prepares an order to appoint the administrator. 4. Inventory and Appraisal. The administrator then prepares an inventory and appraisal of what is in the estate (a list of what the person owned and how much it is worth). 5. Payment of Debts and Settlement of Claims. Administrator pays the debts of the estate including taxes and resolves any outstanding claims (like a credit card debt, utility bill, or outstanding loan). 6. Final Accounting and Distribution. The administrator then prepares and submits to the court an overview of the remaining property in the estate, its value, and an explanation of how they believe the property should be divided per the terms of the will (if there is one, or according to the law, if not), and asks the court to approve their actions. 7. Close of Probate. The court issues an order approving the distribution, the administrator sends out checks, and the probate case is closed.




Why Summerall Law?


Why should I use Summerall Law instead of another firm? 1. Other attorneys are going to offer similar services. The primary complaints that we hear about other practices are that the attorney seemed uninterested in completing the plan, or the process was too complicated, expensive, or burdensome for what the client needed. 2. We have listened to those complaints and we run our practice differently. 3. What our clients appreciate about us: Clear and user-friendly process. The primary distinction between our practice and other practices is that we do a lot of estate planning. Because we have spent so much time on that process our intake process is well-developed requiring little documentation from clients, our turnaround time is fast, our documents are easy to understand, we have well-developed instructions on how to maintain a trust, we have online search services to obtain your deed, and we work well with insurance providers. 4. We have time in our schedule set aside for meetings and signings, we prioritize time with our clients. For attorneys who do less of this work, their process is not as well developed and that can result in duplicative meetings, extra drafts, missed communications, and other time-consuming issues. 5. Attorney attention. Many attorneys try to save time in the estate planning process by having a paralegal meet with the clients. We have found the best way to avoid the back and forth of edits and revisions is for the client to meet directly with the attorney and then for the attorney to promptly prepare and provide a draft estate plan to the client that is very close to the final product. This process allows our clients to feel confident that they understand what they are signing and that it is representative of their wishes. 6. We like meeting with clients and hearing about what is going on in their lives and helping them make informed decisions. It is why we do what we do. 7. Sensible and predictable fixed-fee billing. Many attorneys use traditional billing structures based on charging hourly rates for estate planning services and for follow-up services. Hourly rates have significant downsides. We have seen these rates and final bills be what we consider to be absurd beyond all reason. For example, $7,000 for an amendment, or $1,000 per year in maintenance fees. Not only can hourly rates lead to absurd costs, we believe hourly rates can often lead to less effective estate plans. Clients may decline useful legal tools because they want to avoid costs or because they feel that the attorney may be recommending them to make more money or because they did not fully understand the impact of a document because they did not want to pay for additional attorney time to respond to questions. 8. A flat-fee structure allows for time and flexibility. If our clients have a question or concern, we want them to feel comfortable asking those questions without worrying about fees. Further, we want them to feel confident that if we are recommending a document or process, we are recommending it because it is what is best for their estate, not because we are going to make additional money off of it. Using a system of simple intake forms and process combined with a fixed-fee structure that allows for unlimited follow up questions creates the most peaceful and harmonious planning process.




Frequently Asked Questions


When can people inheriting money or property expect to receive it? We highly recommend that any beneficiary of a probate estate not depend on the money they are planning to receive from the proceeding until they actually receive it. There are a hundred different reasons why the money not be available: there might be unknown creditors, litigation against the estate, or intense and lengthy litigation between the beneficiaries. Even if the money is all there and is coming to you, it may take years. It is going to take longer than you think for the probate process to close. Houses not selling, water leaks, claims by caregivers, complicated creditor claims, busy courts that cannot re-schedule routine hearings for three months, all these obstacles contribute to probate taking longer than anyone wants it to. If you have in your mind that you don’t know how long it will take, you are right. No one knows how long it will take until you get your order for distribution. What do we need to think about in selecting an administrator for an estate? The administrator is usually the spouse, and if no spouse, then one of the children, if no children, then a sibling. It does not have to be one of these people as long as everyone agrees on the best person. The most important aspect of picking an administrator is to pick someone who will not make family conflicts worse. Being financially savvy or having a background in law is not that useful. Having the ability to distribute personal items without hurting anyone’s feelings is priceless. The attorney is going to tell the person what the law allows or requires the administrator to do with property, so as long as the administrator can follow directions, they are qualified for the job. Be realistic when choosing an administrator. Paradoxically, the person who is presumed to have a right to be an administrator under the law of California is also the person most likely to be in the most severe state of grief. If dealing with legal paperwork is going to make the grieving process more intense for that person, we recommend that the family consider other options, such as an aunt or uncle who is available, retired, and would like to help the family out by offering to take on the job. For the family of grieving spouses, please note that the surviving spouse, even if not obviously shaken, may need extra support, care and love for at least a year. Maybe two years. You know how people tend to say that couples share a brain? Well, when one-half of the brain is no longer there, it takes a long time for the other person to catch up. A person who recently lost a spouse and is otherwise mentally capable, will often have a hard time doing simple tasks such as reading and responding to bills or letters. They may also have a hard time expressing their need for new companionship and be extremely sensitive to loved ones and friends not returning calls or responding to letters. Holiday cards are a big deal. If a surviving spouse wants to serve as administrator, we recommend that there be some friends or family that are on call to help them read and respond to email, find where to sign forms, and otherwise provide companionship during this time. Should the administrator charge fees? Being an administrator is hard and is likely to take more time and energy than expected. It requires a lot of work. we believe it is a kind thing for an administrator to serve without asking for compensation, but we don’t recommend it. There are two reasons why an administrator should receive fees: It is a lot of work, and you probably are not used to working for free. There are going to be a seemingly endless list of things that the attorney, a beneficiary, or creditor needs from you. It will be a lot of work and it is easy to not want to do it even when you are getting paid. Doing it when you are not getting paid, might lead to a state of misery that is incapacitating. Getting tired can lead to litigation. If one person is doing all this work, and they are doing it for free, they might have a shorter fuse with complicated demands from their brother or sister who think they sold the microwave for less than it was worth at the estate sale they spent their entire Saturday hosting. This anger can build-up and lead to less than optimal communication which is often the source of litigation. Being paid for the time spent on estate tasks is fair and can help ease the feelings of one person carrying too much of the burden. If someone is adamant that they want to serve without compensation, we recommend that they charge the estate for all of their expenses, the beneficiaries do something super nice for them at the end, and they communicate in the most loving and compassionate way during the process. What options exist for transferring property outside of probate? There are several ways to transfer property without probate. Before we open a probate proceeding in court we review the alternative options with our clients and their families. Heggstad Petitions – When property was not assigned to an existing trust: It is very common for families to create a trust, put their home in the trust, and then when they refinance, or buy another home, they forget to put it back in the trust. As long as there is evidence that the failure to put the property back in the trust was unintentional, the best practice is to file a Heggstad Petition, instead of working through probate proceedings. This petition asks the court to transfer the title to property back to the trust without a formal probate. It can save clients $30,000 in probate fees. These types of petition can also be used for financial accounts that were not titled in the name of the trust (as long as there is some evidence that they were intended to be in the trust). Cost. We do these often and tell clients to plan on about ten hours of attorney time plus the filing fee of ~$450.00. Re-Titling Petitions for Spouses – When a spouse was inadvertently left off the title of property: This situation usually comes up when one spouse is on title to an asset and the other person was not listed, most commonly for financing purposes. When the spouse named on the title passes away, the other spouse needs to have their name added to the title in order to sell or take a loan out on the property. In this situation you do not have to open a probate to transfer title, instead the surviving spouse can petition the court to confirm the spouse’s community property share to the surviving spouse. The order will tell the county recorder to re-title the asset in the surviving spouse’s name. Cost. Plan on about ten hours of attorney time plus the filing fee of ~$450.00. Summary Administration – When the assets are under $150,000: If there is no real property in an estate and the value of the remaining assets is less than $150,000, there is a simplified form of probate called summary administration. Using the summary administration process you can take title to most assets using an affidavit. You can get the forms you need and detailed step-by-step instructions on how to use this process here: http://www.saclaw.org/pages/affidavit-collection-property.aspx Cost. Paying for attorney time generally not necessary when using this type of process.




Fees


Probate matters are set by statute. We do offer discounts for simple cases. Trust matters are billed hourly at $400 per hour with a ten hour minimum. More detailed information is available on our Fees Page.





Probate & Trust Litigation

What is Probate and Trust Litigation?


Probate and trust litigation is the way to compel a person who has a legal duty (trustee, executor, or administrator) to distribute money, homes, cars, or other property that a deceased person owned, to the people who are entitled by law to receive them (beneficiaries). We use litigation to help our clients determine: 1) what assets are they entitled to, 2) who should be in charge of the estate or trust, and 3) is the will or trust valid (or what does it mean).




Litigation Examples and Sample Cases


1. What assets should be distributed? Examples and solutions to who should receive what assets are common litigation issues. A couple of examples of cases where we have won or recovered assets for our clients include the following: Problem Deeds/Ownership Many clients will have issues where a family member was put on a deed, listed as a joint tenant on account, or otherwise, given legal title to an asset, even though that asset should have been part of a trust estate or probate estate and so should go to the heirs. Example 1: House titled In Siblings Name Mom owns a house, daughter is concerned that there is going to be a Medi-Cal lien, so she convinces Mom to sign a deed giving the house to her. Daughter promises mom she is going to sell the home and share the proceeds equally with her siblings. Mom passes away, and a couple of years have gone by and the daughter refuses to sell the home. * Our Solution: Use the courts to challenge ownership so the house ends up going to all the children equally. We have recovered homes using this procedure. * Example 2: Step-Children Cut out of the Will Client’s mom and step-father had a “Bypass Trust” (sometimes called an AB Trust) stating that one-half of the assets had to go to the children of the mother. Mother passes away. Father transfers all of the assets to another trust leaving the assets to his new wife and cutting out the kids. * Our Solution: Use the courts to establish that the father’s transfer was invalid and that the property has to be distributed to the children of mother when the father passes. * Fees for Contesting Ownership or Deed Transfers Contingency Fee based on recovery of the asset. If the client does not receive money (or property), we do not charge a fee. * While many firms have a minimum contingency fee rate of 35%, our contingency fees start at 10% of the amount we win for the client (if the matter is settled before any petitions are filed) and go up to 40% (if an appeal is needed). Fees may vary based on the facts. * 2. Who should be in charge of the estate or trust? (Is the person doing their job right?) Problem Trustees, Executors, and Administrators: Many clients will have problems with the person who is in charge of the estate. Problems include: i. Living in the home and not paying rent ii. Charging the estate for personal expenses iii. Refusing to distribute the assets in the estate iv. Not communicating with the beneficiaries v. Paying their own bills out of their parent’s money vi. Not repaying family members who have loaned money to the estate * Child Executor Lives in Home and Refused to Leave Mom owned a home and passes away with two kids. The will leaves the son in charge but says the house goes to both kids. Son moves into the home and ten years later, he is still living there and has not shared assets with his sibling. * Solution: Use the courts to have the person removed from power and to recover unpaid rent and have the home sold and the money split. * Fee Structure for Removing an Executor or Trustee We will either charge $400 per hour and take payment upfront, or if payment cannot be made up front, we usually charge a minimum fee, plus our hourly rate that is payable out of the money recovered. * 3. Is the trust or will valid? Problem Documents: This usually comes up when someone has created a will or trust when they were sick, disabled, or recently discharged from a hospital. There may also be questions as to what a provision in a will or trust meant. * Example of Will Signed with No Capacity Unmarried father was in the hospital when a will or trust was signed giving all the father’s assets to one of his three children. Client (son) met with his father the day before his father signed the documents and his father could barely speak and was heavily medicated. * Solution: Use the courts to have the trust deemed invalid. Assets would be distributed to the three children in equal shares or according to the prior will or trust. * Fees Structure for Contesting a Will or Trust: Contingency Fee based on client’s distribution. If the client does not receive any money or property, we do not charge a fee. Contingency fees start at 10% of the amount recovered (settled before any petitions are filed) and go up to 40% (if an appeal is needed). Fees may vary based on the facts.




Examples of Cases We Take


  • Determine if a Trust or Will Is Valid
  • Determine if a Debt Should Be Paid or Not
  • Remove a Trustee for Breach of Any Duty
  • Elder Abuse (stealing money or assets from an elder, refusing to allow visits, or physical abuse of an elder)
  • Protection of Spouses – to establish what is community property and what is separate property, payment of a spousal allowance (similar to spousal support after passing), petition to establish a probate homestead (right of a spouse or minor children to stay in a home)
  • Request an Accounting by a Trustee (a formal report of what actions have been taken, what property is in the estate, and the proposed distribution)
  • Responding on behalf of the Trustee or Administrator - to any of these claims or defending against any of these claims




Examples of Cases We Do Not Take


  • Conservatorships
  • Guardianships

Why? These cases tend to be focused more on family law issues and are quite different procedurally. Since often “a jack of all trades is a master of none” and we want to provide exceptional service to our clients, we stick with what we know.




Why Summerall Law?


We Create Custom Solutions for Our Clients We do not have a “one size fits all” approach to litigation matters. We identify the client’s goals early on and then work to achieve those goals. Not all litigation is about money. Often it is about just wanting to know what happened, reaching a resolution with family members, or wanting to put a chapter in your life behind you and move on from a probate or trust matter that has been following you around for years. * We Help Our Clients Identify Reasonable Solutions We try to help our clients identify what are the real options and resolutions ahead of them. Too often, lawyers let clients start a legal battle where there is no reasonable solution at law. We outline the possibly outcomes and let the client decide whether or not they want to take a risk, after being fully informed about the costs. * We Mediate Quick and Meaningful Settlements We have had some amazing mediation results where we have been able to convince very stubborn opposing parties to come to the table and work out a resolution that works for the whole family in a short period of time. Speed matters because the time spent litigating exacts an emotional burden on the client and their family; the shorter the time period you have the issue hanging over you the better. Litigation can cause a lot of stress and courts are notoriously slow. When we can persuade the “other side” to pay out the same amount in ½ the time using mediation instead of litigation, the client wins twice.




Fees


Most litigation cases are billed as a contingency fee ranging from 10-40%. We cover the costs and no payment is due unless the client wins. Fees for cases where we are helping assert a clients rights, such as a right to an accounting, are generally billed on an hourly fee bases at $400 per hour with a ten hour minimum. More information is available on our Fee Page.





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