Frequently Asked Questions · For California Families
The questions Robert P. Bergman hears most often.
29 answers across estate planning, trusts, probate, Prop 19, special needs, powers of attorney, and Heggstad petitions. Filter by topic, search by keyword, and open whichever ones match your situation.
California families ask Robert P. Bergman a recurring set of questions about wills, trusts, probate, Prop 19, Medi-Cal preservation, powers of attorney, and Heggstad petitions. The answers below come from the same conversations he has at the Plan Design Meeting, organized by topic and searchable. Each answer carries a chip showing which area it belongs to.
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A standard California estate plan from Robert P. Bergman includes a revocable living trust to hold your assets and direct their distribution, pour-over wills that catch anything not transferred into the trust, durable powers of attorney for finances so someone you trust can manage your affairs if you cannot, advance health care directives that name your health care decision maker and record your treatment preferences, HIPAA authorizations, a certification of trust, a general assignment of property to the trust, and the California real estate transfers that fund the trust. Plans for families with minor children also include guardian nominations.
A standard California estate plan from the Law Offices of Robert P. Bergman is priced as a fixed fee based on the family situation and the asset structure. Plans involving sub-trusts (special needs, dynasty, irrevocable life insurance trusts) or business interests are priced separately. Robert P. Bergman gives you a written fee estimate at the initial Plan Design Meeting after reviewing your assets and goals. No surprises later.
Most plans are signed within three to six weeks of the initial Plan Design Meeting. The timeline has four steps: Plan Design Meeting (60 to 90 minutes), drafting (one to two weeks), draft review meeting (60 minutes), and signing appointment (45 to 60 minutes). After signing, the funding step transfers your assets into the trust. Robert P. Bergman walks you through funding step by step.
Review your plan whenever a major life event happens: marriage, divorce, birth or adoption, death of a spouse or beneficiary, significant change in assets, move into or out of California, or a beneficiary’s significant change in circumstances. Review the plan even without an event every five years to catch changes in California law (Prop 19 in 2020, the Uniform Trust Decanting Act in 2018, the 2026 Medi-Cal asset-limit reinstatement). Most updates are amendments rather than full restatements; the cost is modest.
For California families with a home, a special needs concern, a blended family, business interests, or any expectation of conflict among beneficiaries, the answer is no. Online services produce a generic document. They do not handle Prop 19 planning, Medi-Cal preservation, retirement account beneficiary coordination, or the funding step that determines whether the trust actually works. A specialist drafted plan costs more up front and often saves the family far more later.
A revocable living trust is a legal arrangement where you transfer your assets into a trust during your life, serve as your own trustee while you are able, and name a successor trustee to take over if you become incapacitated or die. Because the trust is revocable, you can amend, restate, or terminate it at any time. The whole point is to avoid California probate at death and to put a single person in charge if you cannot manage your affairs during life.
Most California families with a home use a living trust because California probate is slow, public, and expensive. The statutory probate fees alone for a $1 million California estate are roughly $46,000. A fully funded living trust avoids those fees and the 9-to-18-month timeline entirely. A will alone leaves California assets to probate. For most Silicon Valley families, the home value alone puts them above the small-estate threshold.
Funding is the step where you actually transfer your assets into the trust. The trust deed gets recorded against your home so the property is held in the trust’s name. Brokerage and bank accounts are retitled in the trust’s name. Beneficiary designations on retirement accounts and life insurance are updated to direct those benefits into the trust at death. Without funding, the trust is just a document. The most common reason California families file Heggstad petitions later is incomplete funding at the start.
Someone trustworthy, organized, and willing to take on the responsibility. Most California families name a spouse as initial successor and an adult child or sibling as alternate. For families with conflict potential, a professional fiduciary or trust company can serve as a neutral party. The successor trustee will have to give the Probate Code Section 16061.7 notice within 60 days of your death, prepare an accounting, file final tax returns, and distribute the trust according to its terms.
Probate for residents of San Jose and the rest of Santa Clara County is filed in the Probate Division of the Santa Clara County Superior Court. The Probate Division sits at the Downtown Superior Courthouse, 191 North First Street, San Jose, CA 95113.
A typical uncontested California probate runs 9 to 18 months from filing to closing. Santa Clara County is on the faster end of that range when the case is straightforward. The minimum 4-month creditor claim period under Probate Code Section 9100 sets a hard floor: nothing closes earlier than that.
California sets statutory probate fees by formula in Probate Code Section 10810: 4% of the first $100,000 of the estate value, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, and 0.5% of the next $15 million. Both the personal representative and the attorney are entitled to the same fee. For a $1 million California estate, combined statutory fees alone come to about $46,000.
California probate is required when a deceased person owned assets in their own name above the small-estate threshold (currently $208,850 for personal property, with separate procedures for real property under and over $61,500). Assets that pass by beneficiary designation, joint tenancy with right of survivorship, payable-on-death account, or a properly funded living trust avoid probate.
A special needs trust is a trust drafted to specific federal and California rules so that assets inside the trust are not counted as the beneficiary’s assets for Medi-Cal or SSI eligibility. The beneficiary still benefits from the trust (the trustee can pay for supplemental needs the public benefits do not cover), but does not own the assets for eligibility purposes. Without the trust, even a modest inheritance can disqualify a person with a disability from the benefits they depend on.
A third-party special needs trust is funded with someone else’s assets, typically a parent or grandparent. There is no payback to the state at the beneficiary’s death; remaining assets pass to other family members named in the trust. A first-party (self-settled) special needs trust is funded with the beneficiary’s own assets, typically from a personal injury settlement or an inheritance received in their own name. First-party trusts must include a payback provision under 42 U.S.C. § 1396p(d)(4)(A).
California eliminated the Medi-Cal asset test on January 1, 2024. In 2026, the state is reinstating an asset limit. Families who relied on the elimination to leave assets in the beneficiary’s name will need to move those assets into a properly drafted special needs trust before the limit takes effect, or risk losing coverage. See the dedicated guide on the blog for full details.
Proposition 19 took effect February 16, 2021. Under the new rules, a child who inherits a parent’s home only keeps the parent’s low property tax basis if the child moves into the home as a primary residence within one year and files a Homeowners’ Exemption. Even then, only the first $1 million of value above the parent’s assessed value is excluded from reassessment. Vacation homes, rental properties, and second homes are reassessed at full market value on transfer.
Only if at least one child moves into the home as a primary residence within one year of inheritance and files a Homeowners’ Exemption. The first $1 million above your assessed value is excluded; any value above that is reassessed. If no child moves in, or if the home is a vacation or rental property, the entire property is reassessed at fair market value.
Sometimes, but not always. A lifetime gift can preserve the parent’s assessed value if the child will occupy the home, but it triggers a gift tax reporting requirement, gives up the step-up in income tax basis at death, and creates exposure to the child’s creditors and divorce. The right answer depends on the home’s value, the child’s situation, and the family’s overall plan.
A durable power of attorney is a written authorization where you (the principal) name another person (your agent) to handle your financial affairs. The word “durable” means the authority survives your incapacity; an ordinary power of attorney terminates the moment you become unable to make decisions, which is exactly when you need it. California Probate Code Section 4124 defines durability and Probate Code Section 4400 et seq sets out the rules.
A California advance health care directive (AHCD) is a written document that names a health care agent to make medical decisions for you if you cannot, and records your treatment preferences for life support, resuscitation, organ donation, and end of life care. California Probate Code Section 4670 et seq governs these directives, and the AHCD also includes a HIPAA authorization so your agent can access your medical records.
Your family will usually have to file a California conservatorship petition. A conservatorship is a court proceeding where a judge appoints someone to make financial decisions (conservatorship of the estate) and personal care decisions (conservatorship of the person). The process takes months, costs thousands in attorney fees, requires annual accountings to the court for life, and is public record. A durable power of attorney and advance health care directive avoid the entire process if signed before incapacity strikes.
A Heggstad petition asks a California court to confirm that an asset belongs to a trust when the asset was supposed to be transferred into the trust but the formal paperwork was never completed. The name comes from the 1993 California Court of Appeal case Estate of Heggstad. The petition is filed under California Probate Code Section 850 and resolves the asset directly into the trust, avoiding a full probate proceeding.
File a Heggstad petition when a deceased person had a properly drafted and signed living trust but failed to formally transfer a specific asset into the trust during their lifetime. Common examples: the family home was never deeded into the trust, a brokerage account was opened after the trust was signed but never retitled, or an LLC interest was assigned but the paperwork was lost. Strong evidence of intent (a schedule of assets listing the property, a pour-over will, contemporaneous funding instructions) makes for a strong petition.
A typical Heggstad petition resolves in 60 to 120 days from filing in Santa Clara County. The court requires notice to interested parties and a hearing date. Most unopposed petitions are granted at the first hearing. Contested petitions take longer.
The Consultation is a free 15-minute conversation with Robert P. Bergman. He listens to your family situation, identifies what kind of plan would fit, and quotes a fixed fee for the engagement. There is no charge for the session and no obligation to move forward. Most California families use the session to decide whether a designed plan is worth it for their situation.
Yes. Robert P. Bergman drafts every plan personally. No paralegal hand-offs, no template factory. The attorney named on the door reads every page. The State Bar of California has certified him as a specialist in Estate Planning, Trust and Probate Law, a credential held by less than 1% of California attorneys.
The office is in San Jose. Meetings are available in person at the office or by Zoom for families anywhere in California. Most Plan Design Meetings happen in person; draft review and signing happen at the office; ongoing administrative communication happens by phone, email, or video as fits the matter.
Yes. Robert P. Bergman represents California families throughout the state. Estate planning, special needs trusts, Heggstad petitions, and trust modification petitions are governed by California law that applies uniformly across counties. Petitions are filed in the county where the trustee lives or the property is located.
For Deeper Reading
Where each topic lives in full.
Every FAQ answer is the short version. The practice-area pages cover the same ground in full, with statutory cites, examples, and the planning trade-offs.
Estate Planning
The four-document plan and what it includes for a California family.
Read the guideRevocable Living Trusts
The trust at the center of most plans, plus the funding step.
Read the guideSpecial Needs Trusts
Third-party and first-party trusts and the 2026 Medi-Cal change.
Read the guideProp 19 Planning
Parent-child rules, the $1M cap, and the strategies around them.
Read the guideHeggstad Petitions
Probate Code Section 850 for assets left out of the trust.
Read the guidePowers of Attorney
Durable POA for finances and advance health care directive.
Read the guideNext Step
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Robert P. Bergman is one of less than 1% of California attorneys certified as a specialist by the State Bar.