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The California estate plan debate about avoiding probate

Last year at this time, Los Angeles estate planning attorneys were concerned about protecting clients' assets from potentially high taxes. Fears that the IRS tax-free part of an estate would drop from above $5 million to $1 million were unfounded. Federal estate taxes did rise to 40 percent but not to 55 percent as was predicted.

When lawmakers made the tax changes permanent, the focus of estate plans began to shift. Many legal experts say estate planning clients at every level of wealth have become worried about probate.

Assets may differ in probate estates and federal tax estates. The IRS plays by its own rules to judge property, and tax what an estate is worth. Probate is handled at a state level. The process essentially ties up a decedent's financial loose ends, like settling unpaid debts and asset title transfers to beneficiaries.

Probate may be necessary even when a decedent has a valid will. All California estates containing assets of more than $100,000 go before a probate judge. With proper legal preparation and representation, the probate process should not be as long, costly or stressful as many heirs imagine.

When an estate is kept out of probate, the contents remain private. Assets that are not reviewed in probate like life insurance, 401(k) plans and IRAs move straight to beneficiaries.

A revocable living trust may be used to prevent assets from moving through probate. The trust, not an individual, becomes the assets' owner. In many cases, the person who created the trust serves as trustee and trust beneficiary. The set up can stay this way throughout the creator's lifetime or can be changed or revoked at will.

An estate planning attorney may advise using probate to its best advantage rather than trying to ignore the process altogether. The only way to find out what works best in your situation is to speak with your legal consultant.

Source:, "To Avoid Probate or Not?" Bob Carlson, Jul. 31, 2013

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