Grossman Law Firm Blog

Gary Coleman's parents abandon probate case

Gary Coleman's parents abandon probate case

Estate tax uncertainty complicates trust administration

Congress' failure to enact estate tax legislation will complicate trust administration

Probate lawyers don't get to invest probate funds

Probate lawyers don't get to invest money for the probate estate

Joe Jackson can't contest appointment of executors

Joe Jackson, who won't inherit from his son's estate, can not challenge the appointment of the executors of his estate

A will is not a trust and trust is not a will

A revocable living trust is not a will and a will is not a trust

Should a fiduciary have an attorney in probate court?

I am regularly asked whether an executor or trustee needs an attorney to represent them in probate court.  I can't imagine any other setting in which a person going to court would seriously ask whether they need a lawyer.  Well, it's easy for a probate lawyer to tell you how much you need a lawyer in probate court.  So don't take my word for it.  Franklin County (Ohio) Probate Court Judge Eric Brown posted this on his court's website:

Does a Fiduciary Need an Attorney?


Due to the complexity of the law and the legal problems that are involved in estate administration, the Court strongly recommends that all fiduciaries seek legal counsel. Good legal advice and guidance can expedite the probate process, prevent costly errors, and protect against the fiduciary being sued.

When judge tells you that you need an attorney... you need an attorney.

Redlands Probate Court to close

The San Bernardino County Superior Court has announced the closing of the Redlands Probate Court.  The closing is related to the state's fiscal crisis and the need to cut costs wherever possible.  The probate court building will close on October 12, 2009 and move to San Bernardino in the civil court building.

The closing is particularly distressing because the Redlands Probate Court was an example of government working well to serve the citizens.  Under the current set up two probate court judges and their staffs occupied the building.  Parking was usually ample.  Other than probate cases, the court  heard some traffic matters.  The physical set up provided for a more relaxed atmosphere than found in most courthouses.

With the court moving  back to downtown San Bernardino, parties and their lawyers will be thrown into the scramble for parking.  It is expected the two judges assigned to probate cases will keep those cases but  it is unknown if they will be assigned other cases as well.  Let's hope not.  The probate case  load is large and continues to grow.  Saddling this court with other assignments will only impair access to probate court parties.

Foreclosure and probate in California

Foreclosure and probate are no strangers to each other in California.  In our badly depressed real estate market many homes are worth less than the mortgages on them.  Unfortunately, the obligation to make timely mortgage payments doesn't stop, or even pause, when your loved one dies.  Some people think there is some type of grace period in which the mortgage payments temporarily cease while the probate process gets under way.  This simply isn't so.

If you are an executor and become aware the probate estate is facing foreclosure on a piece of real estate then you must act quickly.  Inform your probate attorney the foreclosure process has begun.

If there is equity in the property so it is worth saving then your probate lawyer will probably do one of two things.  First, contact the lender and see if the loan can be brought current.  If the probate estate has enough cash available then this is the fastest, simplest way to save the property.  You will be able to use that cash to save the property if your letters testamentary or letters of administration have already issued.

Your second option for saving a property in foreclosure is to have your probate lawyer obtain a temporary restraining order to prevent the lender from foreclosing on the property.  This is definitely not your best option.  As you might imagine, judges are well aware of how these prejudice a lender who is trying to collect a legitimate debt.  If the property is not sold during the period of the first order the judge will probably allow the lender to foreclose when the order expires.

Choosing your California probate lawyer

If you are nominated as the executor of a probate estate or want to serve as administrator of an intestate estate then choosing your California probate lawyer is one of the most important decisions you will make.  Finding a qualified probate lawyer in California requires some time and effort.  Put it in and you will be rewarded with a skillful guide who will help you navigate the probate process. 

It is common to find lawyers advertising they do probate in addition to two, three or four different other practice areas. Almost always these practice areas have nothing at all to do with probate. Don't choose a lawyer who does probate as a sideline. When a problem comes up during your case these lawyers often lock up or blunder forward causing real problems for their client.  Their cases often take longer than those handled by experienced California probate lawyers. Knowing how to address difficult situations only comes from the experience gained by having dealt with them before and the willingness to go to court when necessary.

If a problem comes up during the probate of a will or intestate estate then you want an lawyer who will go to court to make the plan work; not one who will abandon you in the middle of a case. Too many lawyers only dabble in probate and probate litigation. Having a lawyer who actively litigates protects you from the beginning of your case. That's because any probate can unexpectedly turned nasty and degenerate into litigation. If your lawyer doesn't do litigation then you're going to have to change your lawyer midway through your probate.

Riverside County probate court has proposed rule to change venue of Banning cases

The Riverside County Superior Court recently proposed a change to its local rules which assign cases originating in Banning to the Desert District.  The new rule, when approved, will move cases from Banning, Beaumont, and the surrounding area to the Riverside District.  This means probate cases in which the decedent lived in Banning or Beaumont or the surrounding will be heard in the Riverside probate court once the proposed rule is enacted.  Currently these cases are heard in the Palm Springs probate court.

Indio probate court moves to Palm Springs

The Riverside County Superior Court has three locations for probate court.  The probate courts are located in Hemet, Riverside, and Indio.  The Indio probate court has relocated to Palm Springs, California. The new Palm Springs probate court is on Tahquitz Way.  The Palm Springs probate court will continue to hear all manner of probate cases (i.e. probate, trust administration, will contests, probate litigation, and will contests) at its new location.  Judge Cox continues to sit as the probate court judge and the operation of the probate court should continue pretty much as it had before.

Preserving a probate inheritance for a disabled child

Parents who have used a will to pass their estate to their children want the best for their disabled (adult) child but often have not fully thought through how to protect the inheritance for their child. My firm recently helped a family through probate in which the main beneficiary was the developmentally disabled 50 year old son. The father had drafted the will himself and made a passing reference to his son being disabled and the need to protect his benefits.

If nothing more was done, the disabled son would have received his inheritance and then been kicked off of public benefits (SSI and Medi-Cal in this case) because he would have been "overresourced." Rather than let this happen, the probate court was petitioned to create a special needs trust to hold the inheritance. This would allow the money to be spent on the disabled son while allowing him to keep his public benefits. The court found there was an intention by the father to do this and approved the creation of the special needs trust. Because this trust is treated as being created by the father is a "third party" special needs trust and no payback to the state will be required when the disabled son dies.

If our petition was denied then the son, through his legal representative, would have had to petition the probate court for the creation of a "first party" special needs trust. Under this scenario, the disabled son would keep his public benefits. However, when he dies the state will be able to assert a claim for the money they spent on his care.

My trustee won't give me my inheritance

My trustee won't give me my inheritance

Finding all the money can be difficult in probate and trust litigation cases

Finding all of parent's or deceased loved one's assets can be difficult in probate and trust litigation cases

When you don't get your inheritance do something about it NOW!

When your inheritance doesn't arrive on time then do something about it immediately.

The right way to sue a probate estate

It looks like one of Michael Jackson's former lawyers is suing his probate estate for $3 million.  It will interesting to find out if this attorney actually knows how to sue a probate estate.  Unlike a living person who can be sued quite easily, a claim must be filed with a probate estate before it is sued if the basis for the claim is the decedent (i.e. the person who died) owes a debt to the person suing.  This isn't true if the claim is the estate itself owes a debt (e.g. the executor breached a contract.)

Probate estates have been known to stop creditors cold.  If the creditor just plunges in by filing suit, that creditor will skip the necessary step of filing a claim with the probate estate.  If the claim isn't filed then the executor of the probate estate has a perfect defense.

If the executor knows the creditor (or potential creditor) exists then the executor should send that creditor a notice that informs them of the time they have to file a claim.  I have done this in a number of cases where the creditor didn't file a claim in time.  (I guess some people don't think the rules apply to them.)  When they finally filed they were astounded to find their claim was denied.  Some didn't file a claim and were surprised to find the probate had been closed. 

Church battle over will may require probate court to determine testamentary intent in will

This case between a Houston area church and its parishioners over what a deceased parishioner meant when he left money to the church in his will illustrates the difficulty of determining testamentary intent.  In this case the parishioner left his money to his church.  The church building needs to be repaired.  The local archdiocese wants to demolish the church structure but still receive the bequest from the will.

It is unclear from the will itself whether the money was left to the "mother church" or the local church.  This intention, if the case was in California, would be all important to determine who will actually inherit under the will.  If the decedent meant to benefit just his local church under his will then with the church being shuttered and scheduled for demolition the bequest would likely fail and then pass to the alternate beneficiary or under the laws of intestate succession.  If the decedent meant to leave money to the "mother church" through his will then the church gets the money regardless of what they do to any particular structure.

In a California probate litigation the testator's intent is at issue whenever the language of the will is ambiguous or the situation contemplated by the testator has changed in a way that frustrates the terms of the will.  In such cases, extrinsic evidence (evidence that is something other than the terms of the will) can be introduced to show what the settlor intended.  The probate court judge then decides what was intended and who inherits under the will.

One of the strangest will contests I have seen

In one of the strangest will contests I have seen Robert Jaeger is suing four of his siblings over his mother's estate.  Patricia English has eight children.  After being released from the hospital after having surgery her son came to live with her.  Jaeger says his mother told him she would leave her entire estate to whomever cared for her.  Jaeger stayed for seven years.  During that time English says she grew tired of Jaeger making demands of her and allegations were made that Jaeger was isolating his mother from the rest of the family.  All of this is pretty typical for a will contest.

This will contest gets strange in that Jaeger filed this will contest while his mother is still alive.  After he was removed from his mother's home she changed her will to leave her estate to four of her children, not including Jaeger.  Jaeger alleged the new will was the product of undue influence and filed his will contest.

This will contest takes an even stranger turn in that Jaeger is claiming $1,000,000 in damages while his mother says her sole asset is a house with about $130,000 in equity.  With five parties involved it would be unsurprising if they collectively spend more than that to take this will contest to trial.  The entire story can be found here.

It is surprising the probate court judge in this case is allowing the will contest to go to trial.  Mrs. English is still alive so she could change her will again.  If she does revise her will then its possible another will contest could ensue.  The probate court judge is practically inviting a second will contest over the same probate estate if the will is changed again.  That second will contest would be a complete waste of the probate court judge's time and the time and money of all the parties involved.

I don't think this will contest would be allowed to proceed in a California probate court.  The probate lawyer defending the will contest would assert it's premature until Mrs. English passes away.  If the will contest were allowed to proceed it would be impossible to calculate damages (if the will contest petitioner wins) and its impossible to know who the correct parties to the will contest are.