The Law Office of Albert J. Franco

Frequently Asked Questions

Q: What is probate?

A: Probate is the judicial process by which a judge opens a public determination of who you are , what you own, identifies your creditors and notifies all potential heirs belonging to you. This process takes on average 12-16 months, assuming no one challenges the findings. It is not uncommon for some probates to last for years. The cost for this process can be 5-7% of the gross probated estate. However, the more complex a case is, the higher the fees for both the attorney and executor who can request those fees from the court.

Q: Does everyone have to go through probate?

A: No. if you have a properly designed living trust that holds your assets, you can avoid probate altogether.
Q: What happens to minor children when the parents die unexpectedly?

A: Generally, Child Protective Services will place them in foster care. Meanwhile, your estate will be probated. A guardian will be appointed if the child is a minor, in all likelihood assets will be held for them until they are 18. Then the assets will be given to them outright and without further supervision.

Q: If I have a living trust, who has control of my assets?

A: You have the same control over all the assets you had before you created your trust. However, now your hand-picked trustees can take over on your behalf if you become incapacitated or are otherwise unable to handle your own affairs.

Q: Isn't it complicated to use a living trust?

A: Not at all. In fact, once your assets are transferred to the name of your trust they can stay there until you sell them or otherwise dispose of them. You may buy and sell assets in the name of your trust and even refinance your home in the name of your trust.

Q: Will a trust help if I have a child with special needs that I want to protect?

A: Yes, in fact a trust can protect their interest along with any other of your heirs from creditors and predators for their entire lives.
Q: I have seen trusts advertised for as little $199 and others at $2,500 or more. Why the difference in pricing? Don't all trusts do the same thing?

A: Just as there are wide price differences for cars, boats or life insurance, there are a wide variety of prices for living trusts. The key question to ask yourself when getting a trust is, "Am I getting a consultant or a document drafter?" Your lawyer should gather extensive information about you, your family and your assets.Then you should sit down and discuss what your objectives are for having the trust. Is it just to avoid probate and save on estate taxes? Is it to protect your heirs from creditors and predators for their lifetime? Do you prefer to delay when a child would receive their inheritance? Are there special needs of a child you want addressed? With out consulting with your lawyer, many vital provisions could be left out. As such, sometimes having a poorly constructed trust is worse then no trust at all!

Q: As an owner of a small business, what are some of the advantages in creating a corporation or Limited Liability Company (LLC)?

A:There are many, including liability protection and certain tax advantages. Also, you can structure the ownership transition to the next generation without having to give up control now. You may also want to equalize your estate with those family members who are not actively working in the business.
Q: I have several rental properties. What are some of the advantages in creating a separate company?

A: There are many advantages, and here just a few: 1. You reduce your liability exposure by not having all of your eggs in one basket. For example, if you are the sole owner of three homes and an apartment building, if something should occur all of your properties are at risk. By setting up individual LLC's, you limit the exposure of one property to that particular LLC. 2. Using an LLC or corporation can be useful in passing those assets on to the next generation or in a direct sale. 3. There are many deductions for C corporations, including employee benefits, such as health, life, disability insurance and pension plans.

Q: I already have a trust. Why do I need an LLC or Corporation?
A: Some people believe that creating a revocable living trust will shield them from liability. However, that is not the case.  You have the same liability you had before you created the trust. Having a higher level of liability protection may mean creating a separate entity and acquiring insurance to cover particular risks. Again, planning and consultation are the keys.

Call today for your free initial consultation. The Law Office of Albert J. Franco, APC Office: (800) 931-5071, or email us under the "Want to ask a question?" tab at the top of this page.

All information on this site is intended only as a general overview and not specific legal advise. You should always seek competent legal advice for your  individual matter.