Attorney Blog

Estate tax uncertainty complicates trust administration

sgrossman@grossmanlaw.net (Blog Author)23693 — Sat, 19 Dec 2009 08:00:00 EST

The estate tax is scheduled to expire, for one year, on December 31, 2009. The estate tax is scheduled to return in its 2011 with a $1 million per person exemption. Congress has spent this year dickering over what an extension of the estate law should be. No legislation has been passed and as the Wall Street Journal reported today it appears no new law will be passed by year end.

This presents a real problem for executors and trustees in charge of larger estates. Congress is talking about passing legislation that will be retroactive to the beginning of 2010. Of course, there is no assurance this will be the case and the Constitutionality of retroactive laws is always a question.

Executors and trustees are well advised to moderate the pace of their administration for estates created due to the death of a loved one in 2010. If there is any chance the trust or estate you are administering or putting through probate could be subject to estate taxes then you will need to know what the new estate tax law is before making distributions. An executor or trustee who fails to pay taxes for the probate estate or trust estate is personally liable for any tax deficiency.

Dad's dumb move prevents son from inheriting

sgrossman@grossmanlaw.net (Blog Author)23671 — Fri, 18 Dec 2009 08:00:00 EST

A grieving son contacted me because his father's second wife's niece received his father's property. His father had gotten married for the second time and created a revocable living trust. The trust was a typical A-B trust.

The second wife tried to carry out the terms of the trust. She began the process to fund the two subtrusts after her husband's death but she died before she could fund the subtrusts. Before her death, she realized her late husband had taken a large bank accounts out of the trust and retitled it so that he held it with her is joint tenants. She recognized that he intended for this bank account to be part of the trust and she wanted to honor her husband's wishes. The second wife died before this could be done and that large bank account never made its way back into the trust.

The second wife's niece became the trustee after she died. The second wife's niece convinced her to put her on bank account as a joint tenant. When her aunt died, the bank account passed to the niece as the surviving joint tenant.

The father's son simply couldn't believe what he found out. Unlike most cases that are ripe for trust litigation, this one didn't have an obvious bad guy. All the mistakes this man's father made, he made on his own. While there are lots of legitimate reasons to begin trust litigation, you just can't win because someone did something dumb.

Probate lawyers don't get to invest probate funds

sgrossman@grossmanlaw.net (Blog Author)23102 — Tue, 08 Dec 2009 08:00:00 EST

This article from Wisconsin caught my eye. It looks like this probate lawyer misinvested and/or took $1.6 million in funds from his clients. Incredible.

I've seen more than few California probates in which a substantial amount of the probate estate's money is put in the probate attorney's client trust account. This never made any sense to me and is, I believe, contrary to the probate code. Assume an estate is all cash. Even in today's very low interest rate environment if the entire estate is put in an interest bearing account then the estate will get some interest. Put the same money in the attorney's client trust account and the estate won't get any interest. There's just no benefit to the estate to do this.

The probate code requires all the liquid assets of the estate be put in an interest bearing account except for the amount reasonably necessary for the administration of the estate. There can be times, like when litigation is settled, that some of the estate's cash may be in the probate attorney's client trust account. But this doesn't happen often. There is just no good reason to put large amounts of money into the attorney's client trust account.

Similarly, the attorney should never invest the probate estate's assets. To the extent the funds are invested (and your options are very limited under the probate code) the investment decisions must be made by the executor or administrator. Never, never allow your probate lawyer to invest estate assets.

Joe Jackson can't contest appointment of executors

sgrossman@grossmanlaw.net (Blog Author)22955 — Sun, 06 Dec 2009 08:00:00 EST

Joe Jackson was denied the right to challenge the appointment of the executors of Michael Jackson's estate. Judge Beckloff, the Los Angeles probate court judge who made this decision, got it right. The will had already been admitted to probate and Joe Jackson does not inherit under the will. Since Jackson takes nothing under the will had no standing (meaning he had no stake in the outcome) so he couldn't challenge who would be in charge of the estate; the executor. If someone who got nothing under the will could challenge the appointment then that would allow anyone with an opinion and enough money to hire a lawyer the ability to tie up a probate.

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

sgrossman@grossmanlaw.net (Blog Author)21989 — Wed, 18 Nov 2009 08:00:00 EST

Recently I've been getting a bunch of emails asking about the "executor of my mom's trust" and the "trustee of my dad's will." The terms concerning wills and trust can get confusing but they can't be used interchangeably. Wills go through probate and the person in charge of the probate estate is the executor. Executors are in charge of wills, not trusts.

Trusts don't go through probate. The person in charge of the trust is the trustee. Trustees are in charge of trusts, not wills.

This may sound like a word game but these are very important terms and they can have real effects on cases. Not all trusts are fully funded. I've seen more than a few estates where part goes through probate and part passes through a trust. The twist is the terms of the will and trust are not identical and the person nominated to be the executor of the will is different from the trustee of the trust. I've had cases were a person was trying to describe a lifetime gift but they used the words trust and trustee. Since their statements were admitted into evidence during their case this was a serious mistake in their word choice.

You don't have to be a lawyer to keep this all straight and keep yourself out of trouble. A will is a will, a trust is a trust, and an executor is never in charge of a trust.

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

sgrossman@grossmanlaw.net (Blog Author)21988 — Wed, 18 Nov 2009 08:00:00 EST

Recently I have been getting a bunch of calls from people who didn't get their inheritances... over a decade ago. Maybe it's the time of the year. Thanksgiving is around the corner and New Years Day is on the horizon. People want a sense of closure and their missing inheritance is on their minds.

It's perfectly understandable to believe it when a family member is in charge of the probate or trust tells you the money won't be coming for a long time or that the money is going to someone else. It makes sense you don't want to create waves in the family. It's okay to shrug your shoulders saying you didn't want anything anyhow. If you are willing to accept any of these situations that's fine. But don't let it go for years and years and years and then decide to look into your situation.

The most perfect case in the world isn't worth a thing if you let it go too long. California, like every other state, has statutes of limitation. These statutes set time limits on when you sue. Make no mistake about it, probate litigation, will contests, and trust litigation are all lawsuits. You may have as little as 120 days to file suit. You may have 4 years or longer. There is no benefit to waiting to find out if you have a case.

If you haven't gotten the inheritance you believe you are supposed to receive then look into it NOW! Waiting too long can cause you to lose a case you would otherwise win.

The right way to sue a probate estate

sgrossman@grossmanlaw.net (Blog Author)20882 — Sun, 01 Nov 2009 08:00:00 EST

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.

Take a tip from Katherine Jackson, fire your probate attorney if it helps you

sgrossman@grossmanlaw.net (Blog Author)20468 — Fri, 23 Oct 2009 08:00:00 EST

Michael Jackson's mother, Katherine Jackson, fired her to attorneys in her battle over her son's probate estate. Initially Mrs. Jackson didn't hire a probate attorney to represent her a rather attorneys without particular expertise in probate. Mrs. Jackson hired a new attorney, a probate litigator, to represent her. Mrs. Jackson was apparently dissatisfied with the two attorney, she had representing her and decided she needed a tried-and-true probate litigator to represent her in the ongoing battles over her son's estate.

One of the interesting lessons of this episode is one that's lost on so many probate litigants. Mrs. Jackson was dissatisfied with their attorneys and fired them. Far too often, probate litigants trudge along with an attorney that makes them uncomfortable or in whom they have little confidence. No one has to do that. If you are litigating a probate case then take a lesson from Katherine Jackson, get yourself a new probate attorney. If you're not satisfied with the attorney you have now.

DJ AM dies without a will

sgrossman@grossmanlaw.net (Blog Author)18284 — Sun, 13 Sep 2009 08:00:00 EST

Celebrity turntablist DJ AM died without a will. His mother filed for probate and sought to be appointed executor of his estate. Since he was unmarried and had not children it is a near certainty his mother will be appointed executor (had this probate been in California then she would have been appointed administrator.)

This should be plain vanilla probate. There's no hint of any illegitimate children or secret marriages. If so then his mother should be able to move this probate along and receive the net estate as the sole beneficiary.

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

sgrossman@grossmanlaw.net (Blog Author)17661 — Sun, 30 Aug 2009 08:00:00 EST

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.

Should a fiduciary have an attorney in probate court?

sgrossman@grossmanlaw.net (Blog Author)17568 — Thu, 27 Aug 2009 08:00:00 EST

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

sgrossman@grossmanlaw.net (Blog Author)16985 — Sun, 16 Aug 2009 08:00:00 EST

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.

Will contest commentator misunderstands Leona Helmsley estate litigation ruling

sgrossman@grossmanlaw.net (Blog Author)16977 — Sun, 16 Aug 2009 08:00:00 EST

The well publicized and much criticized case of Leona Helmsley's will and trust is in the news again. The examiner.com has a columnist who is outraged that Helmsley's wishes have been ignored. But were they? The columnist's first complaint is Helmsley having disinherited two of her grandchildren. Those grandchildren filed a will contest alleging Helmsley was not mentally competent when she signed her will. The estate's executors decided to settle the lawsuit rather than take it to trial. The columnist is surprised and angry the executors changed the will to include omitted heirs. This view betrays the columnists ignorance. The executors did not change the will. A challenge was brought to the validity of the will. Had the executors lost the litigation the entire will would have been set aside. Had this happened, the court (not the executors) would have been saying Helmsley was incapable of expressing her true wishes. By settling the case the executors must have thought there was some risk of loss and giving up a piece of the estate was better than having the entire will set aside.

The columnist has a fair point that Helmsley specifically left $12 million for her dog's care and that amount was reduced by the court to $2 million. Typically, will provisions that are specific and clear are carried out to the letter. If in fact this was the case then there is no legitimate reason for the judge to have allowed a departure from those terms. I am not aware of any appeal having been taken from the judge's ruling in that regard which may indicate New York law permits the trustee of an animal trust to not comply with its literal language if its intention can still be carried out through other means.

Filing a trust contest takes can't be done by filling out a form

sgrossman@grossmanlaw.net (Blog Author)13201 — Thu, 04 Jun 2009 08:00:00 EST

I was recently contacted by someone who wanted to file a trust contest in San Bernardino County. After discussing the facts of her case with her it became clear that she was unlikely to be able to prove her case. This person then asked me to take her case on a contingency basis. While my firm does take some trust contests on a contingency fee we only do so with cases we believe have merit. This one didn't.

I declined to take this case and the caller asked how to file the trust contest on her own. So, I explained to her how that's done. You can click here if you want to learn how to start a California trust contest. Having received an explanation I was sure this caller would either contact another attorney or decide not to pursue her case. Instead she asked "where do I get the form." There is no form I replied. Each trust contest has unique facts and those facts have to be plead in your petition. She just couldn't accept this and repeatedly asked what form she should fill out to start her case. She just did not want to accept my explanation. I suppose there is some poor clerk at the probate court who is still trying to explain to her she has to draft a petition because there is no form.

Choosing your California probate lawyer

sgrossman@grossmanlaw.net (Blog Author)10448 — Tue, 31 Mar 2009 08:00:00 EST

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.

Foreclosure and probate in California

sgrossman@grossmanlaw.net (Blog Author)10399 — Mon, 30 Mar 2009 08:00:00 EST

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.

Riverside probate lawyer releases free California probate book and DVD

sgrossman@grossmanlaw.net (Blog Author)10398 — Mon, 30 Mar 2009 08:00:00 EST

Riverside probate lawyer releases free California probate book and DVD. Riverside probate lawyer Scott Grossman has released a book and DVD on California probate and trust administration. His book, The Insider’s Guide to California Probate and Trust Administration as well as the DVD Probating a Will or Administering a Trust After the Death of a Loved One are available to anyone seeking a probate lawyer or with questions about California probate and trust administration including executors, administrators and beneficiaries of California probate estates as well as trustees and beneficiaries of California trusts. The book and DVD can be ordered by calling (866) 540-0000 or by clicking here.

San Diego probate lawyer releases free California probate book and DVD

sgrossman@grossmanlaw.net (Blog Author)10397 — Sun, 29 Mar 2009 08:00:00 EST

San Diego probate lawyer releases free California probate book and DVD. San Diego probate lawyer Scott Grossman has released a book and DVD on California probate and trust administration. His book, The Insider's Guide to California Probate and Trust Administration as well as the DVD Probating a Will or Administering a Trust After the Death of a Loved One are available to anyone seeking a probate lawyer or with questions about California probate and trust administration including executors, administrators and beneficiaries of California probate estates as well as trustees and beneficiaries of California trusts. The book and DVD can be ordered by calling (866) 540-0000 or by clicking here.

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

sgrossman@grossmanlaw.net (Blog Author)10331 — Fri, 27 Mar 2009 08:00:00 EST

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.

Riverside County has unpublished rules for mid-county probate venue

sgrossman@grossmanlaw.net (Blog Author)9517 — Mon, 02 Mar 2009 08:00:00 EST

Nominated executors and administrators filing a new probate petition in Riverside County beware of the court's unpublished venue rules. My firm recently filed a new probate petition for a decedent who resided in Banning at the time of his death. The probate petition we drafted for our client stated the case would be heard in the Riverside probate court. To our surprise the case was assigned to the Palm Springs probate court.

We followed up with the clerk's office believing a mistake had been made. A check of the court's local rules revealed there is no guidance on which court is the proper venue for filings in the mid-county region which roughly covers the area between Temecula, Hemet and Banning. The clerk's office recently circulated a non-public memo assigning cases originating out of Banning and Beaumont to the Palm Springs probate court.

As Riverside and Palm Springs probate lawyers this a circumstance we can readily address for our client by amending the probate petition, giving new notice of the hearing and publishing notice. For those who chose to try a California probate on their own this sort of change can cause confusion and delays. More importantly, we have published laws and local rules so that all participants in the court system know what to expect and what standards must be met. Unpublished rules severely undermine this principal.

Where is the San Diego probate court?

sgrossman@grossmanlaw.net (Blog Author)8902 — Sun, 08 Feb 2009 08:00:00 EST

San Diego County has two probate courts that serve different regions in San Diego County. The North County (Vista) Probate serves most of North County San Diego. Generally speaking, North County starts at Escondido and extends north to the Riverside County line. The downtown San Deigo probate court serves the rest of San Diego County.

Indio probate court moves to Palm Springs

sgrossman@grossmanlaw.net (Blog Author)8880 — Sat, 07 Feb 2009 08:00:00 EST

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.

One of the strangest will contests I have seen

sgrossman@grossmanlaw.net (Blog Author)8797 — Thu, 05 Feb 2009 08:00:00 EST

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 hospita 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.

Where is the San Bernardino County Probate Court?

sgrossman@grossmanlaw.net (Blog Author)8580 — Fri, 30 Jan 2009 08:00:00 EST

Not so long ago finding the San Bernardino County Probate Court was quite a trick. The court was divided among the various San Bernardino County Superior Courts in Rancho Cucamonga, San Bernardino, Victorville, Yucca Valley,etc. San Bernardino County has since consolidated the San Bernardino County Probate Court. The San Bernardino County Probate Court now sits in Redlands. Two judges are permanently assigned to the court and they hear all the cases assigned for probate.

San Bernardino is, geographically, a very large county. So whether the decedent (i.e. the person who died) lived in Ontario, Apple Valley, Redlands, Yucca Valley, Yucaipa or San Bernardino, the probate case will be heard in Redlands

Preserving a probate inheritance for a disabled child

sgrossman@grossmanlaw.net (Blog Author)8527 — Wed, 28 Jan 2009 08:00:00 EST

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.

Selling a home in probate during a declining real estate market

sgrossman@grossmanlaw.net (Blog Author)8526 — Wed, 28 Jan 2009 08:00:00 EST

Many executors are worried about what to do with the real estate they control in probate estates. The fears of holding on to residential real estate in Riverside, San Bernardino and San Diego Counties is well justified. A recent newpaper article says we are in for another one to two years of declining real estate values. That article can be viewed here http://www.nctimes.com/articles/2008/07/01/business/z82ae2726b0f49f7a882574790075c6b6.txt.

In the real estate market we have now executors are well advised to either sell their real estate at auction or use a real esate agent who is both well aware of current market prices and will recommend the price be reduced as needed to keep pace with a declining market. An auction has the benefit of finality and the likelihood of bringing a true market price for the property. A good auctioneer will advertise the upcoming sale for weeks before the scheduled auction. When auction day arrives the executor (and beneficiaries) can be confident the best possible price for the property will be obtained. Some recent auctions in southwest Riverside County have resulted in overbids because the properties were aggressively priced and the bidders then bid up the prices.

Using a traditional real estate agent can also work but the agent needs to be realistic with the executor. Everyone wants to hear they will get the price they want for their property. That’s not helpful in today’s real estate market. The executor should challenge the real estate agent to provide a realistic price based on current sales of comparable properties. With those prices in mind a sales price should be set with the realization that price may need to be reduced if the house does not sell quickly.

The house is getting sold during the will contest

sgrossman@grossmanlaw.net (Blog Author)8525 — Wed, 28 Jan 2009 08:00:00 EST

In the Riverside Probate Court recently I saw an interesting and enlightening argument about what to do with a house that would be going through probate. (This could just have easily happend in the San Diego probate court or the San Bernardino probate court.) A brother and sister were disputing the admission of their mother’s will to probate. Either way, the house was going through probate. There was obvious animosity between them and a long history to the case.

While the case dragged on someone asked for the appointment of a special administrator. The sister was living in the house, rent-free, while the case dragged on. The probate judge was being asked to leave things this way since the trial wouldn’t happen for another six months, if that soon.

On the face of it, the request wasn’t completely absurd (though it would have helped if the sister offered to pay rent) because no knew who would wind up with the house. Even so, the judge made clear in probate the court will act to preserve the value of the estate. In a declining real estate market, the judge reasoned, the only way to do that was to have the house sold. The winner of the will contest would get the proceeds from the sale of the house.

The lesson: in the Riverside probate court expect to have the home sold if you don’t have title to it.

Where is the Riverside County Probate Court?

sgrossman@grossmanlaw.net (Blog Author)8312 — Wed, 21 Jan 2009 08:00:00 EST

For anyone who has a probate in Riverside County, California it is not immediately obvious where to file for probate. There are three different probate courts in Riverside County. The one in the City of Riverside serves nearly all of the western part of Riverside County between the area bounded by Corona, Temecula, and Banning. The probate court in Hemet serves cases that came from someone who lived in or left real estate in Hemet or San Jacinto. Finally there is the probate court in Indio. The Indio probate court serves the eastern two thirds of Riverside County from Whitewater through the desert region (Palm Springs, Palm Desert, Desert Hot Springs, Cathedral City, Rancho Mirage, Indian Wells, and Indio) all the way to Blythe.

Riverside County’s Superior Courts permit filing of any court document at any courthouse. That meand you file for probate any at any of the courts. That doesn’t relieve anyone filing for probate to get their case assigned to the correct probate court. It is not uncommon for me to see a case get called for its first hearing in the wrong court. This can lead to the case being delayed for one to two months.

Estate tax repeal means some spouses are disinherited

sgrossman@grossmanlaw.net (News Author)12048 — Sat, 02 Jan 2010 08:00:00 EST

Estate tax repeal may result in surviving spouses being unintentionally disinherited. This results from Congress spectacular failure, with 10 years warning, to pass a successor estate tax law to the one that allowed the estate tax to expire for 2010.

Spousal disinheritance may occur under wills and trusts that have pecuniary funding formulas to determine how to fund the decedent's trust for estate tax purposes. With no law having been passed to implement an estate tax, the decedent's share is now unlimited. Under the old law there was a built in assumption that the decedent's share would be capped and the "overage" would go the surviving spouse. The current state of the law may be a real quandry for some surviving spouses.

Estate taxes set to expire in 2010

sgrossman@grossmanlaw.net (News Author)11779 — Sat, 19 Dec 2009 08:00:00 EST

Congress' failure to pass a new estate tax law means decedents who die in 2010 won't owe any estate taxes no matter how large their estate. The current estate tax law calls for the repeal of the estate tax in 2010 and its return in 2011. Congress spent most of this year making various proposals to extend the current law but none of them passed. It now appears no new estate tax law will be passed this year.

Congress almost surely will pass a new estate tax law in 2010. As the article in the link above mentions, Congress will probably make whatever estate law is passed retroactive to the beginning of 2010.

Probate lawyer under criminal investigation for taking money from estate

sgrossman@grossmanlaw.net (News Author)11654 — Tue, 08 Dec 2009 08:00:00 EST

A Milwaukee probate attorney is the subject of a criminal investigation for allegedly taking $1.6 million from his clients. This is a lesson to anyone engaged in probate. It is perfectly fine to deposit small amounts of money in an attorney's client trust account. It is also acceptable to have money received in a settlement be sent to your attorney's client trust account. It is never a good idea for that money to sit there for an extended period of time. It is also a terrible idea to have your attorney invest your money for you.

Steve McNair's estate free to sell share of restaurant

sgrossman@grossmanlaw.net (News Author)11435 — Tue, 24 Nov 2009 08:00:00 EST

A Tennessee probate court judge has ruled that Steve McNair's probate estate can sell the estate's ownership interest in a local restaurant. Unsurprisingly, the probate court judge ruled that McNair's estate was not required to maintain its 80% interest in the restaurant. Rather, the judge allow the probate estate to sell the interest in the restaurant in order to maximize its value.

Trust mills fined over $6 million

sgrossman@grossmanlaw.net (News Author)11144 — Sun, 01 Nov 2009 08:00:00 EST

Some times bad things happen to bad people. American Family Prepaid Legal Corp. and Heritage Marketing and Insurance Services Inc. were fined over $6 million by the Ohio Supreme Court. The firms used high pressure sales tactics to inappropriate products to their clients.

Both companies were found to be practicing law without a license. Though not stated in the article, they probably left trust funding to their clients. This will likely result in some families facing a probate that could have been avoided.

Katherine Jackson fires her probate attorney.

sgrossman@grossmanlaw.net (News Author)10952 — Fri, 23 Oct 2009 08:00:00 EST

Michael Jackson's mother, Katherine Jackson, fired her to attorneys in her battle over her son's probate estate. Mrs. Jackson hired a new probate attorney to represent her. Mrs. Jackson was apparently dissatisfied with the two attorney, she had representing her and decided she needed a tried-and-true probate litigator to represent her in the ongoing battles over her son's estate.

Yes, a bad father can luck into an inheritance

sgrossman@grossmanlaw.net (News Author)10399 — Thu, 17 Sep 2009 08:00:00 EST

A Ventura County probate court, and the appellate court that heard the case, ruled an absent father that owed back child support, and hadn't seen his son in 42 years still inherited from his probate estate because the son died without a will. Laura Barnes and Clifford Shellenbarger divorced over 40 years ago. Shortly after they were divorced their son Lesley was born. 42 years later Lesley died intestate. In other words, he didn't have a will.

Under California probate law because Lesley didn't have a will, spouse, registered domestic partner, or children, his parents inherit. Each parent gets half the probate estate.

Laura petitioned the probate court to prevent Clifford from receiving any inheritance. She alleged Clifford hadn't seen their son since their divorce and owed back child support. She felt it would inequitable for Clifford to receive any of their son's money based on his conduct and inattention.

The appellate court followed the law by holding both parents inherit equally. It may seem unfair on these facts but the law is the law. The lesson to take from this case: if a person dies without a will then the rules of intestate succession will apply.

Michael Jackson's estate will pay for his lavish funeral

sgrossman@grossmanlaw.net (News Author)10348 — Sun, 13 Sep 2009 08:00:00 EST

The executors of Michael Jackson's estate sought probate court approval to pay the extraordinary expenses for his funeral. Though the amount sought would be enormous for most families, given the size of Jackson's estate it is a relatively small expense. The probate court judge approved the expense.

Church battles parishioner over inheritance

sgrossman@grossmanlaw.net (News Author)10176 — Sun, 30 Aug 2009 08:00:00 EST

A church and its parishioners are in a battle over an inheritance from a deceased parishioner. The local archdiocese wants to demolish the church structure and still receive the inheritance. Local parishioners argue the money left to the church is more than enough to repair the church and allow it to re-open. The case highlights the importance of expressing testamentary intentions.

Heiress' inability to recognize son supports fraud charge

sgrossman@grossmanlaw.net (News Author)10157 — Thu, 27 Aug 2009 08:00:00 EST

The criminal case against heiress Brook Astor's son was supported by the testimony of her long time chaffeur that the heiress didn't recognize her son on a number of occassions during the last few years of her life. The prosecution introduced this testimony to support their fraud claim.

In California will contest and trust litigation cases, evidence a parent does not recognize their child is often introduced to prove lack of capacity or undue influence. California law presumes competence and part of that is recognizing your family. The law assumes most people will leave their money and property to their children barring a child being estranged or another good reason for doing otherwise. Failing to recognize your own son or daughter often explains why all the property was left to just one son or daughter or someone who is not part of the family.

Riverside County probate courts ending cross-filing

sgrossman@grossmanlaw.net (News Author)8944 — Mon, 08 Jun 2009 08:00:00 EST

Riverside County's probate courts are ending their cross-filing program on July 1, 2009. The end of this program effects all courts in the county. This is a big step backward for making the court's user friendly.

The cross-filing program allowed attorney's and unrepresented parties to file pleadings in any court in the county. No matter where the pleadings were filed they were then directed to the correct courthouse and the department that had the case. This program made it convenient, for example, for an executor living in Riverside to have his Riverside based attorney file a probate petition in Riverside for the Palm Springs probate court. With the close of this program, that same attorney will have to either mail the pleading to the Palm Springs probate court or pay his or her attorney service an additional fee to drive it out to the Palm Springs probate court for filing.

No doubt the end of the cross-filing program will increase the cost of cases for many people.

Conflicting wills leads to charge of undue influence

sgrossman@grossmanlaw.net (News Author)8947 — Mon, 08 Jun 2009 08:00:00 EST

Cape Cod artist Mary Kass left two wills created years apart. The conflict in the terms of the wills lead to beneficiaries of the first will claiming undue influence in the creation of the second will.

Ms. Kass accumulated tens of millions of dollars worth of art. She originally left a substantial portion of her estate to her niece and nephew through her will. A later will left most of her estate to the National Gallery of Art and put her caregiver in charge of her estate along with a major brokerage house. Her niece and nephew claim the second will was the product of the caregiver's undue influence. No doubt the caregiver is in a position to earn large fees helping to probate this will.

Changes to will leads to criminal elder abuse case

sgrossman@grossmanlaw.net (News Author)8948 — Fri, 05 Jun 2009 08:00:00 EST

Heiress Brooke Astor's attorney was called to testify in a criminal elder abuse case that sprang from multiple changes to her will when she was 101. Astor's attorney was called as a prosecution witness but was questioned, at times, as though he were a hostile witness. The prosecution contends he exhibited loyalty to both Mrs. Astor and her son.

This can be a real source of tension for families with aging parents who are not as sharp or spry as they used to be. A well intentioned attorney can come to rely on communications from an adult child and not realize the requests being made are the child's requests, not his or her client's request. Such divided loyalties can result in charges of undue influence and lack of capacity if there is a will contest. If the adult child "helping" his or her parent also received any property while the parent was alive then financial elder abuse charges, criminal or civil, can result.

In this case, many millions of dollars were at stake which is why, I suspect, a criminal case was filed. Had this case involved a family with a more modest estate then the other children would probably have had to bring a civil case if they were going to get the inheritanc intended for them.

Estate planning for blended families

sgrossman@grossmanlaw.net (News Author)8136 — Tue, 14 Apr 2009 08:00:00 EST

Blended families have special challenges when creating their estate plans. Clarity of purpose and design are extremely important if your plan will work as intended and leave the family intact rather than fighting with one another.

San Bernardino probate lawyer releases free California probate book and DVD

sgrossman@grossmanlaw.net (News Author)7942 — Thu, 02 Apr 2009 08:00:00 EST

San Bernardino probate lawyer releases free California probate book and DVD. San Bernardino probate lawyer Scott Grossman has released a book and DVD on California probate and trust administration. His book, The Insider’s Guide to California Probate and Trust Administration as well as the DVD Probating a Will or Administering a Trust After the Death of a Loved One are available to anyone seeking a probate lawyer or with questions about California probate and trust administration including executors, administrators and beneficiaries of California probate estates as well as trustees and beneficiaries of California trusts. The book and DVD can be ordered by calling (866)540-0000 or by clicking here.

Motley Fool makes common mistake about probate

sgrossman@grossmanlaw.net (News Author)7998 — Wed, 01 Apr 2009 08:00:00 EST

This piece from the Motley Fool makes a common mistake about probate. The article's main point is to hire a competent estate planning attorney while you are alive and well to put together an estate plan in order to avoid probate. That's sound advice that everyone would do well to follow.

The article also says that if you die without a will or a trust the state takes over and your estate will linger for years in probate. They are wrong on both counts. First, if you die without a will or trust then the California Probate Code lists a series of people (e.g. your spouse or registered domestic partner, child, etc.) who have statutory priority to be appointed the administrator of your estate. An administrator is the same as an executor but the title changes when there is no will. The only way "the state" takes over is if no one comes forward to take charge of the probate.

The second mistake is saying the probate will take years. California probate law presumes a probate will be finished in one year or less. The executor has to go to court to get permission from the probate judge in order to keep an estate open longer than a year. While this does happen it usually happens where there are exceptional circumstances.

The Motley Fool is right that you should have an estate plan. They would be wise to consult a probate attorney when they want to know how probate actually works.

Probate attorney disbarred for failing to work on probate

sgrossman@grossmanlaw.net (News Author)7956 — Tue, 31 Mar 2009 08:00:00 EST

This news story from Florida about Peter Schmidt, a probate attorney, illustrates the pitfalls of choosing the wrong probate attorney. Mr. Schmidt was disbarred for five years from the Florida bar for starting work on a probate case and then failing to diligently administer it. The second reason for his disbarment was for taking $85,000 from the probate estate that was put in his client trust account.

Probate cases require regular oversight. Failure to stay on top of the case often results in the case stalling and the beneficiaries getting angry at the executor for failing to get their inheritance to them. Nominated executors would be wise to do some homework before hiring their probate lawyer.

Depositing funds from the probate estate into your lawyers trust account is never required in a California probate case. A good California probate lawyer will instruct an executor how to correctly establish a bank account in the name of the probate estate. This keeps the executor in control of the estate's money and prevents the sort of problem illustrated by this case.

New York Times article makes common estate planning mistake

sgrossman@grossmanlaw.net (News Author)7940 — Mon, 30 Mar 2009 08:00:00 EST

This New York Times article makes the common mistake of believing the people who create estate plans won't get the benefit of their plans; only their heirs will. This columnist, like so many other people, assumes that tax planning is the only reason to do estate planning. This is a huge mistake.

Fewer than 2% of our country is potentially subject to the estate tax. The number is probably smaller still with the recent increase in the estate tax exemption amount to $3,500,000 per person and the steep declines in the stock, bond and real estate markets. Still, estate planning is important to most people.

Everyone, regardless of their financial status, is at risk of becoming mentally disabled or impaired as they age. This can come from illness, disease, or just the normal symptoms of advanced age. A well designed estate plan gives you the opportunity to determine what the standard will be to determine if you are disabled and no longer able to control your own affairs. If you are disabled then through your estate plan you can choose who will control your finances and health care decision making. This may sound simple or obvious but the details of this type of planning are crucial to its success.

Palm Springs probate lawyer releases free California probate book and DVD

sgrossman@grossmanlaw.net (News Author)7941 — Mon, 30 Mar 2009 08:00:00 EST

Palm Springs probate lawyer releases free California probate book and DVD. Palm Sprngs probate lawyer Scott Grossman has released a book and DVD on California probate and trust administration. His book, The Insider's Guide to California Probate and Trust Administration as well as the DVD Probating a Will or Administering a Trust After the Death of a Loved One are available to anyone seeking a probate lawyer or with questions about California probate and trust administration including executors, administrators and beneficiaries of California probate estates as well as trustees and beneficiaries of California trusts. The book and DVD can be ordered by calling (866) 540-0000 or by clicking here.

Helmsley's pet trust was poorly drafted

sgrossman@grossmanlaw.net (News Author)7765 — Wed, 18 Mar 2009 08:00:00 EST

Billionaire Leona Helmsley created a trust that she thought would leave all her money in trust to be used solely for the care and welfare of her dogs. Helmsley inexplicably drafted a "mission statement" for her trust and then failed to include any of it in the trust itself. The mission statement provided instructions to her trustees on how her money should be used after her death.

This fundamental omission allowed her trustee to file a motion with New York's version of probate court asking the court to allow them to use the trust funds for charitable purposes since the trust itself did not direct them how to use the trust assets. The judge ruled the trustees may, in their sole discretion, determine for what charitable purposes the funds can be used.

Probate estates drained by executors

sgrossman@grossmanlaw.net (News Author)7693 — Tue, 10 Mar 2009 08:00:00 EST

This new story details to men in charge of probate estates in Mississippi who bled the estate's dry. In both cases the executor's did not file a formal accountings with the local probate courts. This allowed them to take money from the probate estates without the beneficiaries ever becoming aware. The lesson for beneficiaries of California probate estates is to require the executor to either produce copies of the financial records for the probate estate or provide a formal account to the court. If the executor declines to either provide the records or a formal account then assume you have trouble brewing.

Michigan man leaves probate estate to area hospital

sgrossman@grossmanlaw.net (News Author)7350 — Mon, 09 Mar 2009 08:00:00 EST

In a case that made nationwide news, a Michigan man who froze to death in his home left his probate estate of $600,000 to an area hospital.

Probate sale of real estate is difficult when family members disagree

sgrossman@grossmanlaw.net (News Author)7570 — Mon, 09 Mar 2009 08:00:00 EST

This story from Wales illustrates the problems Californians have when family members can't agree on a sales price for a home being sold in probate. The home being a major part of the estate even in a tough real estate market.

In a declining real estate market about the worst thing that can happen is to let family disagreements prevent the home from being sold. In California, probate calls for the appointment of a executor or administrator of the probate estate. If the family members are at odds over who this should be (perhaps because they are at odds over whether the house should be sold) then a petition to appoint a special administrator can be filed with the probate court. The special administrator temporarily controls the probate estate and can decided whether the sale of the home is appropriate.

Estate administrator shouldn't use wife as realtor

sgrossman@grossmanlaw.net (News Author)7692 — Mon, 09 Mar 2009 08:00:00 EST

New York State's surrogate court told the public administrator that he shouldn't use his wife as the real estate agent for properties being sold by his office. The surrogate court is New York's equivalent to California's probate court. California executors would be wise to take a lesson from this story. It is generally impermissible for an executor to hire a relative, and pay that relative, for services provided to the probate estate. If you are an executor and believe that your relative is best suited to do something for the probate estate then have your attorney petitioned the court to allow you to higher your relative. Do this before hiring your relative. This will help you avoid problems when you tried to close the probate estate.

Trustee steals from trust he administered for his daughter

sgrossman@grossmanlaw.net (News Author)7569 — Sun, 01 Mar 2009 08:00:00 EST

This story from Philadelphia recounts how a state senator received a $1,000,000 gift from his friend. It just so happens that gift came from the friend taking the money from his daughter's trust. Of course, as trustee he had no right to take the money from the trust and make a gift of it.

Trustees improperly taking money from a trust is not uncommon. Beneficiaries of a trust who have been ripped off can sue the trustee in probate court if they are going to recover what is rightfully theirs. Usually this is done by filing a petition in probate court seeking to surcharge the trustee.

Lawsuits fly against probate estate in attempt to recover assets

sgrossman@grossmanlaw.net (News Author)7439 — Thu, 19 Feb 2009 08:00:00 EST

This story illustrates one of the more unpleasant tasks that falls to executors and administrators, defending the probate estate from lawsuits. Had this story been from California it's possible the probate estate would do better than it appears to be doing in this case. Under California probate law a creditor has to file a claim with the estate before suing the estate. The creditor can not sue a California probate estate without taking this step. If the probate estate denies the claim or fails to act on it then the creditor can sue the estate. If the creditor sues the probate estate without filing a creditor's claim then the estate will have a perfect defense to the lawsuit.

Heir grievances lead to estate litigation

sgrossman@grossmanlaw.net (News Author)7425 — Tue, 17 Feb 2009 08:00:00 EST

Gifts made while your loved one is alive can lead to probate litigation after they have died. This story from Kansas City illustrates a common scenario seen so often in California probate court and litigated by California probate lawyers. Here, a blended family had a harmonious relationship while both the husband and wife were alive. When the husband died his children took items from the house they claimed were family heirlooms and some money from a joint bank account. After the wife died, and her will was admitted to probate, litigation ensued to determine what each person named in the will was supposed to receive.

Had this case been in California, a good California probate attorney would have recognized the property taken from the wife would give the executor a reason to file a financial elder abuse lawsuit or an "850 petition" (which is petition in a California probate court claiming someone is holding property that really belongs to the probate estate.) Financial elder abuse lawsuits can lead to the defendant having to repay the amount they took along with attorney's fees and costs. An 850 petition can lead to the defendant having to pay double damages.

Riverside California probate attorney has firm taken over by State Bar

sgrossman@grossmanlaw.net (News Author)7373 — Sat, 14 Feb 2009 08:00:00 EST

Mitchell Roth, an attorney whose firm has offices in Riverside, San Diego, and Sherman Oaks was hospitalized for depression and had his firm taken over by the State Bar. Roth opened his practice in 1997, handling credit, debt and collections, general civil litigation, personal injury, medical malpractice, wills and trusts, and probate matters in addition to foreclosure defense. Recently, Roth was handling thousands of foreclosure defense cases that were referred to him through a company called United First. Roth will no longer be handling his clients cases. Clients represented by Mitchell Roth should find new counsel to represent them in their cases.

Does Anna Nicole Smith's will contest provide any lessons for the rest of us?

sgrossman@grossmanlaw.net (News Author)7339 — Wed, 11 Feb 2009 08:00:00 EST

The Anna Nicole Smith will contest is celebrating its second anniversary and drawing another round of commentary. A commentator at Townhall.com urges that this case sets a bad example for families everywhere. I disagree.

Let me blunt. From everything I have read about this case it appears to me Anna Nicole Smith was a gold digger and her husband knew it. Her husband spent millions on her while he was alive. He had other plans for when he died. He went to his lawyers, had his will changed, and deliberately left her nothing. She hired some probate lawyers, sued in Texas and lost. After declaring bankruptcy she sued in a California bankruptcy court invoking artfully alleging her case wasn't really probate litigation or a will contest but rather the tort of interfering with her inheritance. In other words, she found a way into federal court. The bankruptcy court agreed with her and she was awarded about half a billion dollars.

Unsurprisingly, her husband's estate appealed. The United States District Court cut the award by about three quarters. It went up another level of appeal to the Ninth Circuit Court Of Appeals who threw the case out saying it should never have left Texas. Smith then appealed to the Supreme Court. They sent it back to the Ninth Circuit. It appears the case is dead.

So, as I see it, Smith filed a will contest but tried not to call it a will contest. She, and later her estate, spent a ton of time and money pursuing a case she should lose. It now appears she has. In my opinion this will contest teaches us the facts of a case matter. Meritorious cases will prevail and unmeritorious cases will fail. It also teaches us that everybody gets their day in court. That's the way it should be.

Delayed probate accounts were a sign of trouble

sgrossman@grossmanlaw.net (News Author)7342 — Wed, 11 Feb 2009 08:00:00 EST

This case supervised by New York's equivalent of probate court involves an attorney who was apponted to act as guardian of disabled adults. He wouldn't file required accounts. It turns out those accounts weren't filed because he was stealing money from the guardianship accounts.

This case presents a lesson for every beneficiary of a probate estate or trust estate. If you are not getting timely accounts from the probate or trust then you need to take action to protect your interest in the probate or trust.

Scam artists appear to be active in Nigerian probate court

sgrossman@grossmanlaw.net (News Author)7320 — Wed, 11 Feb 2009 08:00:00 EST

I shouldn't take such delight in this case but reading about this probate litigation case from Nigeria brought a smile to my face. The executors of two probate estates couldn't agree how to use some of the estate's property. The probate litigation features some unintentionally funny testimony. It appears the same type of person who runs those terribly Nigerian email scams are also active in Nigerian probate courts.

Estate planning to benefit church

sgrossman@grossmanlaw.net (News Author)7319 — Tue, 10 Feb 2009 08:00:00 EST

This article shows how a church is helping its parishioners to give to the church, do some estate planning, and make it easy for everyone.

Riverside County probate court is not the only one backed up

sgrossman@grossmanlaw.net (News Author)7317 — Tue, 10 Feb 2009 08:00:00 EST

Probate courts in Florida are backing up just like the Riverside County probate courts. Florida has experienced an increase in civil litigation which has spilled over and slowed down its probate courts. In Riverside County we have experienced a combination of having too few judges for our population and a district attorney's office that seems to believe every case it charges should go to trial. These forces have caused probate litigation, along with all civil cases, to be inordinately delayed.

As a Riverside probate lawyer I have experienced first hand the delay in getting cases to trial. Walking through the Riverside or Indio courthouse you see large numbers of jurors waiting to be called into their courtrooms to decide criminal cases. Unfortunately, this is in the ciivil courthouses which shouldn't be hearing criminal cases. Probate lawyers are being told by the presiding judge in civil court that no cases are being sent to trial without the parties first engaging in some form of alternative dispute resolution. In a recent trust contest and will contest case I tried the judge wouldn't even set a trial date because our case wasn't "old enough" and lots of older cases had a priority to get to trial.

California, like Florida, would benefit from some form of dedicated court funding. The Riveride County probate courts, the cases they hear, the parties involved, and every Riverside probate lawyer would greatly benefit from the county getting an appropriate number of judges for the population and ( a district attorney who realizes most criminal cases can be fairly resolved with a plea bargain.)

Probate estate sues for retirement plan assets and loses

sgrossman@grossmanlaw.net (News Author)7329 — Tue, 10 Feb 2009 08:00:00 EST

If, as part of the divorce settlement, one spouse waives her rights to the pension plan of the other spouse, what happens if the other spouse fails to change his plan beneficiary designation? Does the waiver divest the ex-wife of her interest in the pension benefits?

The United States Supreme Court recently addressed these questions in a very important case that affects a lot of people right now and will affect even more as time goe on. The case is based on a common situation. William Kennedy married Liv Kennedy and worked for Dupont. William named Liv as the designated beneficiary of his Dupont savings and investment plan (SIP) which was William's pension plan. Years later William and Liv got divorced. Their divorce decree divested Liv of her interest in William's SIP. William had the ability to change his designated beneficiary at any time. The SIP plan document directed that the assets go to the plan participant's estate if there is no designated beneficiary.

William died. He never changed his designated beneficiary even though he was divorced from Liv. He also did not name a contingent beneficiary. William's daughter, as the executor of his probate estate, asked the SIP plan administrator to distribute the assets to the probate estate. The plan administrator declined saying the probate estate was not the correct beneficiary and paid out the plan assets to Liv.

The probate estate sued and the case made its way to the Supreme Court. The Supreme Court ruled against the executor and the probate estate. The ex-wife was the correct beneficiary they ruled. The Supreme Court explained that the plan rules were known to William and he could have changed his beneficiary designation at any time. He didn't. He left his ex-wife as the designated beneficiary even though his divorce decree divested her of an interest in the SIP. The ex-wife was the correct beneficiary under the terms of the plan because she was still the designated beneficiary at the time of Willilam's death.

The obvious lesson to learn is change your designated beneficiary to whomever you want to inherit your pension plan. Do not rely on any other document to make a change for you.

Unethical tactics to collect debt from probate estate

sgrossman@grossmanlaw.net (News Author)7318 — Mon, 09 Feb 2009 08:00:00 EST

This Motley Fool article tells the tale a devoted son who met with unscrupulous tactics from a large bank when he informed the bank his mother was dead. The bank wanted to know who would take care of his mother's outstanding credit card balance. He told the bank no one because she was dead. When they pressed him he told the bank they could try the normal probate procedure. From there the bank's representative tried to shame him into paying the outstanding balance on his mother's credit card.

California probate law has a creditors claim procedure that can be very useful when there are large outstanding debts. During probate, creditors can file claims with the probate estate and in the probate court for whatever amount they claim they are owed. The executor can approve the claim, deny the claim, or approve it in part and deny it in part. This can give the executor great leverage to negotiate with creditors because any claim that is denied requires the creditor to file a civil lawsuit if they want to collect the debt.

In a recent Riverside probate I advised an executor to offer all the creditors of the probate estate nine cents on the dollar to settle their debts. Every creditor accepted the offer because we were able to show the probate estate had very little money and huge debts. The creditors, including three different credit card companies, knew they were better to take something from the probate estate than to pursue uneconomic litigation in the civil court

Indio Probate Court is now the Palm Springs Probate Court

sgrossman@grossmanlaw.net (News Author)7301 — Sun, 08 Feb 2009 08:00:00 EST

The Indio, California probate court has been relocated to Palm Springs, California. All probate filings whether for probate, trust administration, will contests, probate litigation or trust litigation must still me at the Riverside County Superior Court in Indio due to construction on the Palm Springs court building. Even though probate and trust cases must be filed in Indio they will all be heard in the new Palm Springs probate department.

Connecticut probate courts may be consolidated

sgrossman@grossmanlaw.net (News Author)7292 — Fri, 06 Feb 2009 08:00:00 EST

Unlike California's probate court system in which each county has only a small number of probate courts (sometimes just one probate court in a county), Connecticut's probate court system is highly dispersed through that small state. It now appears that probate court system is about to undergo massive changes to make it more efficient.

Arizona will contest with strange twist

sgrossman@grossmanlaw.net (News Author)7286 — Thu, 05 Feb 2009 08:00:00 EST

Go here for the whole story.