Frequently Asked Questions

When it comes to hiring workers as independent contractors (aka “1099 workers”), California employers must proceed with caution.  Since Governor Newsom signed Assembly Bill 5 (“AB 5”) into law on September 4, 2020, the very concept of an independent contractor has fundamentally changed.  That law created an initial presumption that a worker in California is an employee unless the hiring entity proves the worker is truly an independent contractor by satisfying a three-pronged test, the “ABC Test”, including the now-infamous prong B that requires the hiring entity to show that the worker only performs work that is outside the usual course of the hiring entity’s business.  The consequence of AB 5 is that, unless an exemption applies, the only workers who will be considered independent contractors are more akin to subcontractors who perform work that is not like work performed by employees in the business.

Employees can voluntarily work through their lunch.  Be sure to get documentation from the employee showing that the employee chose to not have a compliant meal period.  There is no meal period violation if an employee voluntarily chooses to work during a meal period, as long as the employer:

• Relieves the employee of all work duties;
• Relinquishes control over their activities;
• Permits employees a reasonable opportunity to take an uninterrupted 30-minute break;
• Does not impede or discourage the employee from doing so; and
• Completely and accurately records its compliance with California law, including documentation from the employee that it was the employee’s choice to forego or take a shorter meal period.

For more information, we encourage you to read more about compliance with California meal period law.

Yes. Assets that you leave to others using a Last Will and Testament must be distributed through the probate process. If there is no Last Will and Testament (or other estate planning document such as a revocable living trust), then the probate court will decide how to distribute the assets by following California Probate Code intestate succession laws.

There are many alternatives to going through probate.

If the only property in the estate is so encumbered by liens or debts that there will be nothing left once it’s sold, then it may be best to let the foreclosure process take care of it.

If the property has enough value to make it worth pursuing, then available probate alternatives will vary based on a number of factors, including the type of property (real estate or personal property) and its value, who else is on title, and who stands to inherit the property.

If the value of property in the probate estate is less than the statutory threshold ($166,250 in 2021), and at least 40 days have passed since the date of death, then personal property such as bank accounts and stocks can be transferred to the next of kin by using a notarized affidavit signed under penalty of perjury, with required supporting documentation attached.  This procedure cannot be used to transfer real property, but there may be other simplified procedures available through the probate petition process.

If an asset has a beneficiary named to receive it, that asset will not be part of a probate.  Assets that pass by beneficiary designation include life insurance, retirement accounts, pensions, or annuities, payable-on-death or transfer-on-death accounts or deeds, and property in a living trust.

If an asset was titled in the name of more than one person, the type of title ownership might remove the property from the probate estate.  For example, property with title held in joint tenancy or community property with right of survivorship, as well as joint account holders will receive the property without probate.

If survivors include a spouse, registered domestic partner, or minor children, there may be simplified procedures available to transfer the property.  Survivor benefits, such as Social Security or veterans’ benefits, do not require probate.

If you need help determining whether a given probate alternative is available may be difficult, contact experienced probate counsel for guidance. 

A trustee is someone who holds and manages property for the benefit of someone else.  When the creators of a trust die, their successor trustee takes over the tasks of managing the trust assets and carrying out the instructions in the trust documents to ultimately transfer the trust property to the trust beneficiaries.  If the trustee and the executor are not the same person, the trustee will work with the executor on trust-related tasks. 

A trustee can do many of the initial tasks and day-to-day management without the help of professionals. Other tasks, such as filing tax returns, transferring ownership of real estate, funding sub-trusts, and making investment decisions may be best handled with the help of experienced professionals, such as attorneys, accountants, and financial advisors.   

The first step is to read the trust documents and see if they mention trustee compensation.  As with most trust-related questions, the trust documents will determine what can be done.  However, in general, a trustee is entitled to reasonable compensation for the time spent executing trustee duties, and to reimbursement for trust-related costs and expenses.

The most important thing to know is that, unless there is an emergency trust task requiring immediate action, you have time to focus on grieving your parent before you have to worry about trust administration tasks.  As a practical matter in California, you will not be able to do much trust work until you have received the death certificates (order at least 10 certified copies), and it has been at least 40 days since your mom or dad passed. 

After ordering the death certificates, your first tasks will involve initial notifications and getting organized so you can gather as much information about what the trust owned and what it owed. The trustee will work with the executor to find the will and deposit it with the proper probate court.  The trustee will notify interested governmental agencies, including the Social Security Administration, Department of Health and Human Services, and others as required, and will get a taxpayer identification number for the trust. 

The trustee will next give notice to the trust beneficiaries, with the information required by the California Probate Code.  Other tasks include paying debts and may include property appraisals, reviewing investments, filing tax returns, and transferring property. If the trust property will be distributed quickly, then the trustee’s tasks will primarily involve gathering and protecting all trust property and completing the property transfers. 

If the trust will be ongoing, because there are minor children or continuing business operations for example, the trustee will have additional and ongoing tasks. The trustee must communicate with beneficiaries and provide them a trust accounting as required by the trust documents, at least once a year.

Without a valid estate plan in place, those holding your property, such as your bank or mortgage company, may not have authority to recognize your wishes.  Then your survivors will have to seek court supervision to administer your personal affairs.  Even a “small estate” proceeding will take many months and, if you are facing a full-blown probate, it will be at least one to two years, and require several thousand dollars in fees and costs, before the person administering the estate will be able to distribute your property, even for the simplest estate.

An effective estate plan requires information about your family and your assets.  While account numbers and exact balances do not need to be disclosed, the attorney advising you on estate planning matters needs an accurate sense of the size of your estate, the property owned, and the complexity of your family situation, because these things can dramatically impact the advice given.  JDS Law provides clients a confidential Estate Planning Questionnaire to help them gather and organize the necessary information, including the following:

• Copies of current estate planning documents;
• Names and addresses of your children, parents, and siblings;
• Grant deeds to real property, including the legal description of the property;
• Business agreements such as operating agreements, succession agreements, and buy sell agreements;
• General account information for all financial accounts;
• Stock certificates and bonds;
• Information about insured assets; and
• Marital contracts or divorce settlement documents impacting your estate plan.

JDS Law takes the security of your sensitive information and our ethical responsibility to maintain the confidentiality of our clients very seriously.  We offer clients an encrypted and password-protected portal that allows us to securely exchange information, including the Estate Planning Questionnaire, documents, messages, invoices and more.

A living trust is a powerful estate planning tool that allows its creators to hold their personal and real property, use that property for their own benefit during their lifetimes and then direct what happens to the property when they pass away.  If the terms of the trust can be changed while its creator(s) are living, it is a revocable trust, popularly known as a living trust. 

If the terms of the trust cannot be changed once it is signed, then it is an irrevocable trust, which is a different type of trust that can be useful for certain assets and situations.  Trusts are used to provide as easy a transition as possible for the creators’ loved ones, with the goal of avoiding probate and minimizing tax burdens.

If you own an interest in California real property or if your real and personal property totals more than the threshold dollar amount to trigger a California probate proceeding (in 2021, this amount is $166,250), then you should consider whether a trust would benefit you.  Property held in a trust will not be part of the creator’s estate for probate and tax purposes.

In addition, if you have minor children, it is worth thinking about how you would want them to manage their inheritance if you were not here to guide them.  For instance, would you want your child to receive their entire inheritance, outright and without any guidance or restrictions, when they turn 18?  That is what will happen under California law, unless you have left an estate plan with different instructions.

If the home is located in California, you may benefit from a trust, even if the home is your only asset.  If you have more than one beneficiary who will inherit the home, or if minor children are involved, you will most likely want a trust.  If your only asset is the home and you have only one beneficiary you want to inherit the home, there are other alternatives to consider, including a Revocable Transfer on Death Deed.

With estate planning, you must consider the various scenarios that may happen after your death and the impact on your planning goals. What if your significant other marries? What if s/he has more children? What if you are concerned about minimizing tax burdens? Sometimes it makes sense to leave everything to your significant other outright and free of any restrictions, and other times a more nuanced approach is required.

You want to nominate someone you trust that would act in your best interest and in the best interest of those you care about.  Many times the choice is obvious, but sometimes it is not.  The right person to make medical decisions on your behalf may not be the same person you would want to handle your financial affairs.  The best person for your children to live with may not be the best person to manage their inheritance.  JDS Law is equipped to walk you through the process for selecting the people who will carry out the plans you make.

Some documents, such as powers of attorney and property deeds, must be notarized while others need to be witnessed or just signed and dated. JDS Law provides notary services, which are generally included as part of our estate planning packages.

You should update your estate plan whenever you have a major life change, such as a birth, death, marriage or divorce, or whenever there is a major change in the law affecting estate plans.  It is also a good idea to review your estate planning documents every three to five years to make sure they still meet your goals.  JDS Law will review your existing estate plan and give you customized recommendations for updates if needed.

In order to transfer title to real estate in California, a formal deed and accompanying documents must be recorded with the county recorder’s office in the county in which the property is located.  You should have received a copy of the recorded deed.  If you did not, you can search county records by assessor’s parcel number or property address to confirm that a valid deed was properly recorded. If you have concerns that your home may not have been properly transferred to your trust, consult an experienced estate planning attorney for guidance.

You may easily transfer your home into your trust while you and anyone else on the title to the home is living.  If anyone on the title has passed away, the procedure for transferring the property into the trust will vary.  JDS Law has helped trustees successfully petition courts all over California to recognize property as a trust asset.  Contact us for a consultation.

Yes.  Real property that is titled in a revocable trust (sometimes called a living trust) should not be difficult to refinance.   The mortgage company may require you to transfer the property out of the trust before they will fund the loan.  Make sure that the property is properly transferred back into the trust after the refinance is complete. If you need assistance, JDS Law has the experience to help.

Although DIY estate planning software, websites, and pre-made kits are a dime a dozen, one size does not fit all when it comes to estate plans.  Every state, including California, has its own legal requirements and procedures that must be followed for an estate plan to have legal effect.  If you have minimal assets, do not have any real property, and want to leave everything to your closest living relative, then a DIY estate plan may work for you.  For any other estate, creating your own estate plan carries significant risk.  Whatever you decide, be sure to follow the exact procedural requirements for creating valid estate planning documents in California, including very specific witnessing requirements.  An estate plan is one of the few legal acts that survives death.  Because it will not be tested until you are gone, it is worth doing everything possible to ensure it is done right.

Probate is a forms-driven, timeline-intensive process involving hundreds of steps that must be taken in a specific order and by strict deadlines.  While probate court judges are sympathetic to estate administrators, the court cannot overlook skipped steps or missed deadlines, and mistakes in probate cause costly and lengthy delays.  By hiring an experienced probate attorney, you will have a knowledgeable guide beside you.  Attorney’s fees in probate cases are set by statute and involve a sliding scale, based on the gross value of assets in the estate.

It is a years-long process, and most of the estate property cannot be transferred until the end of that process.  Even a simple, uncontested probate should be expected to take at least 12 months.  A probate matter with many beneficiaries, creditors, litigation, or disputed assets can go on for many years.

The total cost of probate will vary depending on the estate’s value, but a good rule of thumb is to plan on all probate-related costs and fees, including statutory attorney’s fees and personal representative compensation, to be between 7% and 10% of the value of the estate.  If the probate involves litigation, complex assets, or business operations, and the attorney has to render extraordinary legal services, the price tag can be much higher.