What does an estate planning paralegal need to know about real estate?

It can be overwhelming to be a paralegal.  The scope of what you need to know can be so broad.  Often one area of law will crossover or overlap with another area.  Estate planning and real estate law are two closely related  areas of the law.

A paralegal working in estate planning should be familiar with the most common ways that real property can be titled in California:

• as Joint Tenants – with Joint Tenancy, both (or all) owners are entitled to an undivided interest in the entire property.  Each joint tenant’s interest is based on how many joint tenants are on title.  If a joint tenant dies, his interest goes by operation of law to the surviving joint tenants.  His Last Will and Testament has no effect on property held in joint tenancy.
• as Tenants in Common – with Tenants in Common, all of the owners have an undivided interest in the property based on their proportionate share.  There is no automatic transfer to the surviving tenants in common upon death.  If a tenant in common has a Last Will and Testament, it will control how the property passes.  If the tenant in common has no will,  it will pass by the laws of intestacy (not to the other tenants in common unless they are next of kin).
• as Community Property – in order to take property as community property, the co-tenants must be married.  If they are, then the property will pass by operation of law to the surviving spouse upon the death of the other spouse.
• as an individual as Trustee of a Revocable Trust – if property is held in Trust, it will pass upon the death of the Settlor/Trustee as indicated in the Declaration of Trust.  If the Settlor has provided that the property is to be distributed upon his or her death, the property will be distributed shortly after death.  If the trust provides that the property is to be held and administered by the Successor Trustee, then it may not be distributed right away but rather upon the occurrence of some other event.

The way in which a piece of real property is titled affects other estate planning decisions and documents.  Some title may need to be changed in order to effectuate or carry out the intentions of the Testator/Settlor.

More on Health Care Directives

The following is a CEB article that discusses other aspects of the Advanced Health Care Directive:

Being Prepared Is Ageless: Everyone Should Have an Advanced Health Care Directive

Health Care Directives

The following is a good article highlighting the importance of Advanced Health Care Directives especially in light of Alzheimer’s onset:

Make Alzheimer’s End-of-Life Healthcare Decisions Long Before You Need Them

Estate Planning Documents are not all treated equally

The following is a good post on where to store your different estate planning documents:

Who’s Got the Power (of attorney)?

Estate Planning – What if there is no will?

When a person dies (the decedent) without a will, people often mistakenly believe that the State of California will come in and take the property.  This result would be extremely unlikely.  When a decedent has no will, the California Probate Code will dictate who receives his or her property.  The Probate Code outlines a decedent’s heirs at law, those who have the right/authority to receive the property belonging to the decedent at the time of his death in the event of no will.

Intestate Succession (general rules for how property passes in California when there is no will)

• If a person dies with a spouse but no children, the entire estate would pass to the spouse.
• If a person dies with a spouse and children, the estate would pass differently depending on the character of the property, i.e. separate or community.
• If a person dies with no spouse and no children, the property would pass to his parents.
• If a person dies with no spouse, no children and his or her parents are deceased, the property would pass to his or her siblings
• If a person dies with no spouse and no children, his or her parents are deceased, and he or she has no siblings, the property would pass to the siblings of his or her parents if they are alive or their issue.

It just gets more complicated from there, but you get the gist of intestate succession law.

Probate?

Whether or not a probate proceeding needs to be commenced really depends on the nature and character of the property owned by the decedent at the time of his or her death.  This is the subject for another post.

Estate Planning (the questions)

In working through an existing estate plan with a client or helping a client to make an initial estate plan, an attorney should be able to give answers to the following questions, so the client can decide what types of estate planning he or she wants or needs to accomplish his or her purposes:

• What property do I have that would be the subject of my estate plan (whether or not you have one)?

                Real?   Personal?

                How is the property titled?

                     (e.g. Joint tenancy, community property, etc.)

                How does title pass when I die?

• Does my estate plan control that property?
• What if I am incapacitated?
• Is this how I want things to be?
•  Do I need a will? a Trust?
• What happens when I die without a will?  with a will?  with a trust?

Estate Planning – Resources for Paralegals

The following are some of the prior posts we have had on estate planning:

Estate Planning and Title

What is your Estate Planning I.Q.?

Understanding the Character of Property (Community, Separate, Quasi-Community)

Look for more posts on this subject in the coming weeks.  Subscribe to the blog, so you don’t miss any posts.

Estate Planning . . .

Here’s an interesting article from the Forbes on women and estate planning.

Nice Girls Talk about Estate Planning

Estate Planning – Choosing an Executor

The following is a link to a discussion of how to choose an executor:

Choosing an Executor (CEB)

Estate Planning – Community Property and Domestic Partners

As we discussed in our last post, the character of property, separate or community, matters to estate planning and decisions regarding estate planning.  The following article discusses a related issue, how the IRS treats community property for domestic partners in California.

Community Property and Domestic Partners