California Probate Law Blog

San Diego Probate Lawyers Explain Why They Don't Take Every Case

Wed, 01 Feb 2012 08:00:00 EST

At the Grossman Law Firm, our clients know their case is our top priority. This is because we carefully select our caseload to best provide our clients with the personal attention they need. Because of this, there are cases we must decline every year.

In general, we might need to refuse a new client if:

The case is outside our practice areas.
We need to devote our full attention to current clients.

We also typically decline California probate cases where the estate isn’t worth enough to make the expense of probate worthwhile for the client.

We might not be able to represent trustees in a California trust administration if:

They aren’t willing to work with us to help best understand their case.
They won’t consider our firm’s advice.
They aren’t willing to work with the other professionals needed to properly administer the California estate.

Finally, we frequently need to turn away cases started with another attorney because such cases can create a disproportionate strain on our resources. However, sometimes trustees or executors find themselves struggling to communicate with their current attorney, maybe even suspecting them to have oversold their expertise in the necessary practice areas. We have taken on clients in these circumstances.

Are you the executor or trustee of a California estate who has found yourself in need of legal counsel? The San Diego probate lawyers at The Grossman Law Firm serve clients in San Diego and outlying areas with trust administration, will contests, trust litigation, and probate services. For a free, 30-minute discussion of your case with one of our attorneys, call us at (951) 683-3704 or (866) 840-0000. You can also reach us online through our quick contact form.

Also, be sure to request your copy of Grossman’s FREE, must-read guide, The Insider’s Guide to California Probate and Trust Administration.

What a San Diego Probate Lawyer Can Do for You in California Probate

Mon, 30 Jan 2012 08:00:00 EST

California law does not require you to have an attorney to probate an estate, but the process is complicated. California probate requires close work with probate court, and even a very minor mistake can dramatically impact those set to inherit from the decedent’s estate. Using a knowledgeable California probate lawyer will not just help you meet all your deadlines and get all the necessary paperwork out, it will help protect you against liability.

Some of the services a San Diego probate attorney will provide you with include:

Initiating proceedings with California probate court
Determining any actions necessary with the assets of the estate
Referring you to other professionals necessary to complete probate
Drafting and filing necessary pleadings
Appearing at probate-related hearings on your behalf
Drafting the inventory and appraisal of estate and filing it with court
Advising you on best procedure if you need to sell real estate
Sending notification directly to known creditors
Reviewing incoming creditor’s claims with you for any necessary actions
Keeping heirs and beneficiaries notified on estate status
Advising you on what checks you need to issue
Drafting deeds needed to convey real estate
Following through on paperwork and receipts for you once estate has been distributed

If you’ve recently lost a loved one and now find that their estate needs to go through the probate process, you may want the help of a probate lawyer in San Diego with The Grossman Law Firm. We offer probate, will contests, trust administration, and estate planning services to Riverside County and outlying areas. Get a free, 30-minute consultation with one of our attorneys by calling (951) 683-3704 or (866)840-0000, or fill out our quick contact form.

Also, be sure to request Scott Grossman’s must-read guide, available to you FREE, The Insider’s Guide to California Probate and Trust Administration.

San Diego Probate Lawyers Explain CA Creditors Claims Procedure

Sun, 29 Jan 2012 08:00:00 EST

Are you a trustee who is anxious about creditors making surprise claims while you’re in the last stages of administering a trust? Are you trying to determine if a claim against the estate is genuine?

Under normal circumstances, creditors have one year from the death of the trust settlor to sue the estate for damages. Because trust administration can sometimes take less than a year, it could draw out the process unnecessarily. The longer time frame also increases the risk of a creditor stepping forward with a fraudulent or exaggerated claim. Though you’ll have options to disprove false claims, doing so could use up valuable time and resources, potentially cutting into the estate.

What Can I Do?

Consider limiting - and eventually ending - unexpected or questionable claims from creditors by invoking the creditors claims procedure. This statute, which is mandatory in probate but voluntary in trust administration, will create a limited timeframe for creditors to file or pursue a claim.

The creditor claims procedure can make a creditor decide not pursue further action, especially if the claim is of questionable value or false. Either way, the creditor will be forced to decide on a course of action within a specific timeframe, allowing you to prepare your case as necessary.

Are you a trustee dealing with potentially false creditors claims against the trust you are administrating? San Diego probate attorney Scott Grossman of The Grossman Law Firm offers a full scope of California estate services, including trust administration and probate, estate planning, trust litigation and will contests to clients in Riverside County. For a free, 30-minute conversation with one of our lawyers, call (951) 683-3704 or (866)840-0000 today.

Additionally, ask for your copy of Scott Grossman’s FREE book, a must-read for every California executor and trustee, The Insider’s Guide to California Probate and Trust Administration.

Review Your Estate Plan For 2012, Says San Diego Probate Lawyer

Sun, 29 Jan 2012 08:00:00 EST

You know to review and make necessary updates to your estate plan with every major life event, but change itself can be so involving that it’s easy for updating your California estate plan to slip your mind.

It’s astonishing how quickly your plan can get out of date. If the time comes for it to be put into action, and it’s out of touch with your current family or financial situation, then you may leave your beneficiaries struggling with California probate, trust litigation, and other issues you wanted to avoid by building a plan in the first place.

The start of a new year is a great time to schedule a regular review of your estate plan, not only to ensure that it’s caught up to where your life is now, but also to catch any applicable changes in tax or estate planning laws that went into effect on January 1st.

Some changes that might impact your estate plan include:

Buying a home
Retiring
Significant changes in the value of your property
Having or adopting children
Divorce or marriage
Children reaching the age of eighteen
Receiving an inheritance
Selling or buying a business
Purchasing property
Moving
Adjustment to tax law
Changes to estate planning law

If you’ve recently reviewed your estate plan or discovered problems that need to be resolved, talk to a San Diego probate attorney at The Grossman Law Firm. We offer estate planning, probate, trust administration, and trust litigation services to San Diego and outlying areas. For a no-cost, 30-minute consultation with one of our lawyers, call (951) 683-3704 or (866)840-0000. You can also reach us online with our quick contact form.

Also, be sure to request Scott Grossman’s must-read, FREE book, The Insider’s Guide to California Probate and Trust Administration.

From San Diego Probate Lawyers: Why Deal With Trust Administration?

Sat, 28 Jan 2012 08:00:00 EST

Done correctly, California trust administration is a lengthy and sometimes agonizing process. You might be dealing with pressure from beneficiaries who don’t want to wait to receive the assets they believe they have coming. Maybe a beneficiary has an especially compelling reason to speed up the distribution of an estate, and you’d like to help by finalizing their inheritance as soon as possible. You’re probably dealing with confusing terms, impatient beneficiaries and more than a few unhappy surprises.

What’s frustrating is that, in cases where California probate is not necessary, executing a trust could be a very quick process. There are no required waiting periods. Assets should already be allocated to the trust. That means that title transfers could happen inside of a few days.

What Goes Wrong?

More often than not, assets haven’t been transferred, terms of the trust aren’t clear, and beneficiaries come forward with conflicting claims. Rushing the execution of a trust could leave a beneficiary without the assets he or she was meant to receive; meaning the expectations of the decedent weren’t met and you haven’t done your job as a trustee. Beneficiaries will hold you responsible for any mistakes, and with good reason.

The primary reason for doing trust administration—and doing it right—is the lasting impact it will have on the lives and future options of your beneficiaries.

If you have been appointed a California trustee, it is in the best interests of both the beneficiaries and yourself to understand what a full trust administration process will entail and plan for it accordingly.

If you’ve been appointed the trustee or executor of a California estate and have questions or concerns about the administration process, the San Diego probate lawyers at The Grossman Law Firm might be able to help. We offer San Diego trust administration, will contests, probate, and estate planning services. For a free, 30-minute consultation with one of our lawyers, call toll-free 888-443-6590. You can also reach us online through our quick contact form.

Also, be sure to request your copy of Scott Grossman’s must-read FREE book, The Insider’s Guide to California Probate and Trust Administration.

Refinancing Can Complicate the Execution of Your California Estate

Tue, 17 Jan 2012 08:00:00 EST

No matter how thorough and unambiguous the language may seem now, you’ll want to regularly review your San Diego estate plan. One of the major reasons is because seemingly unrelated changes can impact the execution of your estate in significant ways. Think about this: refinancing your mortgage can potentially cause problems with the execution of your estate.

It’s standard protocol for lenders to require that the title of your house is in your name during refinancing. If you’ve placed your home in a trust while building an estate plan, then you’ll need to transfer it out of the trust and back into your name for the duration of refinancing. After the refinance is complete, it isn’t uncommon for people to forget to convey the house back into the trust.

If the house hasn’t been transferred back into the trust before you die, then the house will need to go through California probate. This will cost your beneficiaries legal fees and lengthy waiting periods before they can have the house titled to them, which is something you were trying to avoid in creating an estate plan in the first place.

If you’ve had recent life changes that might impact your estate plan, talk to the California trust lawyers at The Grossman Law Firm. We offer estate planning, probate, and trust administration to San Diego and outlying areas. Get a free, 30-minute consultation with one of our lawyers by calling (951) 683-3704 or (866)840-0000, or use our online contact form today.

Also, be sure to request Scott Grossman’s must-read FREE book The Insider’s Guide to California Probate and Trust Administration.

The Spousal Property Petition: Avoid Full California Probate

Mon, 16 Jan 2012 08:00:00 EST

If you’ve recently lost a spouse or domestic partner, then you’re already overwhelmed with pain, loss, and anxiety. Figuring out the process of trust administration or going through a full probate in order to transfer property into your name is just another difficulty during this stressful time. Fortunately, California law has allowances that will make the transfer of inherited property easier on you while you are coping with your loss.

The spousal property petition will allow you to transfer assets from your partner’s name to yours, usually in less time and at significantly less cost than a full probate. If you are your spouse’s or domestic partner’s sole beneficiary or your partner did not leave a will, then all community property could be transferred to you shortly after filing.

Separate property that was not willed to you or any property that was willed to other beneficiaries may need to go through full probate, however. It might then be in your best interests to seek legal counsel to help the process go as smoothly as possible and to protect yourself in case of will contests or trust litigation.

Have you recently lost a spouse or domestic partner and need to know more about the spousal property petition? Are there complications surrounding the administration of your spouse’s or partner’s estate? California trust lawyer Scott Grossman of The Grossman Law Firm offers a full range of California estate services, including probate and trust administration, estate planning, and will contests and trust litigation to clients in and around San Diego. Call our lawyers for a free, 30-minute case review at (951) 683-3704 or (866)840-0000 today.

Also, be sure to request your copy of Scott Grossman’s FREE book The Insider’s Guide to California Probate and Trust Administration.

"Sound Mind" in California Estate Planning

Fri, 13 Jan 2012 08:00:00 EST

A valid California will must meet the following requirements:

The document must be typed or printed.
It must be signed by the author and two witnesses.
The author and witnesses must be at least 18 years of age.
The author must be of sound mind.

Generally, an individual is assumed to be in sound mind unless they have been deemed incompetent in prior court proceedings. However, it is possible that an incompetent individual may have never been subject to court ruling.

Do you have concerns that a loved one was tricked into signing a will that was not in their best interests?

The requirements for sound mind in creating a will are not as strict as those for other contracts. They are as follows:

The individual understands what they own and has a reasonable sense of its value.
The individual knows the beneficiaries listed in the will.
The individual demonstrates appreciation of the meaning and ramifications of the will itself.

Remember that, if the decedent suffered from dementia or other kinds of mental health issues, the will may have been signed before the full extent of illness or during a lucid period. Finding documentation of the decedent’s state of mind during the final review and signing of the will are crucial to your California will contest or trust litigation case.

Do you have concerns about a loved one’s state of mind in creating or signing their will? The California trust lawyers at The Grossman Law Firm offer San Diego will contests, probate, and estate planning services. For a free, 30-minute consultation with one of our lawyers, call us toll-free 888-443-6590, or schedule an appointment using our quick online contact form.

Also, be sure to request Scott Grossman’s FREE book The Ultimate Guide to California Trust and Probate Litigation: How Sons and Daughters Get Their Rightful Inheritances from Their Parent’s Wills and Trusts.

Why You Want the Right Attorney for Your California Probate Case

Thu, 12 Jan 2012 08:00:00 EST

Even when a will or trust has been made, key details regarding the distribution of a loved one’s estate are ambiguous, outdated, or simply inaccurate. There may be complicating factors, such as a disabled beneficiary who could lose public benefits if the language is interpreted the wrong way. There might be growing tensions between beneficiaries that could lapse into costly trust litigation if anything about the interpretation remains uncertain before the closing of the estate.

It’s crucial to have a California trust attorney who has knowledge and experience in probate and trust administration cases like these. As the administrator or executor, you know or are quickly learning that, even without special circumstances, an attorney who only has a shallow understanding of the practice area will be more of a liability than an asset.

An attorney who doesn’t specialize in the field frequently won’t have the experience necessary to take a constructive role in the case. They could even make mistakes that cause serious problems. If your attorney doesn’t know how to work with probate court or effectively petition for judgments, your case could drag on indefinitely, costing you time and valuable resources.

It’s also increasingly common for proceedings to turn sour, necessitating litigation between beneficiaries, heirs, and the executor. If your attorney does not have a cohesive practice, then they may be unable to help you litigate, forcing you to find a new attorney in the middle of a case.

Are you in need of an attorney who is knowledgeable and experienced in probate and trust administration? The California trust lawyers at The Grossman Law Firm offer a full range of estate services, including probate and trust administration, estate planning, will contests, and trust litigation services to clients in San Diego and outlying areas. Call toll-free 888-443-6590, or use our quick online contact form to schedule a free case review today.

Also, be sure to order a copy of Scott Grossman’s FREE book The Insider’s Guide to California Probate and Trust Administration.

Why Is There So Much More California Trust Litigation?

Wed, 11 Jan 2012 08:00:00 EST

It’s getting more and more difficult to be the executor of an estate. If there are any questions about the beneficiaries of a loved one’s estate, or if any aspect of a will was left vague or inaccurate, the executor can become a target.

Frustrated beneficiaries and heirs are far more likely to hire their own attorneys to hold up the probate process - sometimes for years - by finding mistakes or filing lawsuits against you. The toll on a family can be dramatic. Disputes over inheritance can drive rifts between family members that last for generations.

Why?

It is more widely known, now, that beneficiaries and heirs can take an active role in the inheritance process. If they are unsatisfied by what they are being told by the executor, then they’ll hire their own attorney to increase their chances of a more desirable outcome.

It’s important to remember, too, that people are leaving behind larger estates, and an established estate is going to be worth more. Real estate generally trends upward in value, and financial investments have been accruing interest for many years. Increased worth means increased desirability, which usually means litigation.

Are you the executor of an estate that is being held up by litigation? Do you want to ensure your own affairs are in order in the new year? The San Diego trust lawyers at The Grossman Law Firm offer probate litigation, trust administration, will contests, and estate planning services to clients in San Diego and outlying areas. For a complimentary case review, call toll-free 888-443-6590, or use our quick online contact form.

Also, be sure to request Scott Grossman’s FREE book The Ultimate Guide to California Trust and Probate Litigation: How Sons and Daughters Get Their Rightful Inheritances from Their Parent’s Wills and Trusts.

California Baby Boomers Should Accept That They Are Not Eternal

Sat, 10 Dec 2011 08:00:00 EST

Go to a California gym, and you will see many middle-aged and senior people, retired or not, adamant that exercise and a healthy lifestyle will keep them going for decades. Although their mental and physical youth is worth praise, baby-boomers are not always reasonable when it comes to accept the fact that they, too, are mortal.

According to a recent poll among boomers (those born between 1946 and 1964), 64 percent do not have a living will or a health care proxy.

Healthy food and regular exercise notwithstanding, the odds of dying accidentally, suddenly, or after an incurable illness increase year after year. From the ripe age of 50 to 55, it becomes increasingly necessary and urgent for a person to write a will and prepare for the day when that person will have left this world.

Baby boomers have not been immune to divorces and separations, and many have remarried with a spouse having children on their own, often creating awkward, conflicting, and emotionally charged situations for survivors who almost never talk to each other but will need to agree on the distribution of the decedent’s assets.

One often-overlooked aspect is the necessity of establishing a health care proxy or power of attorney. With this document, the aging person allows a trusted friend or relative to make decisions about medical care should he or she become incapacitated.

The proxy and the will need to follow certain legal requirements and be signed by witnesses. It is recommended you inform all members of the family that these documents have been created and where they have been stored.

Above all, people who have accumulated assets and have a family and are getting old (whether or not they are in good physical condition) need to think of the stress they might impose their survivors after their death. If their paperwork is not in order and has never been updated, their intentions have never been communicated formally, or there are latent conflicts between the potential heirs and family, the stress may overwhelm the survivors’ right to grieve the deceased in peace.

Is the California Trustee's Work Adequately Compensated?

Fri, 09 Dec 2011 08:00:00 EST

The California probate law does not answer the question, merely stating that the trustee should receive “reasonable” compensation for administering the trust if such compensation is not determined in the trust instrument. The next question is obviously, “What does reasonable mean?”

Some trusts are large and complex, while others only include a few assets that can be disposed of in a short time. The amount of energy, time, and skill that the trustee needs to dedicate to the task is, of course, very different in both cases and should be compensated accordingly.

There are two ways to establish the trustee’s fees:

As a percentage of the value of the total assets on the date of the settlor’s death
An hourly rate, which may be set at different levels according to the level of skill required in performing the work

The trustee may want to take an hourly rate of $100 for financial work and settle for $30 per hour for tasks like sorting, cleaning, filing, etc. This, in turn, may invite contests and discussions. The trustee’s decision on the system of compensation, if not provided for in the trust instrument, needs to take into account the amount of work, the required skills, and the prevailing atmosphere among the beneficiaries.

A compensation based on a percentage of the assets is, in this respect, a simpler system if the percentage is set at the right level.

Trustees will bear in mind that any fee they collect is considered taxable income, while inheritance is not taxed. If the trustee is also a beneficiary, he or she may reach an agreement with the other beneficiaries to collect compensation for administering the trust through a share of the distributed assets.

In most cases, it is useful for the trustee not to settle the question of compensation until the trustee has had a good feel of the difficulties and amount of work involved. In all cases, the trustee will have to keep a detailed calendar and time log of all the tasks performed should there be any question later on about the services rendered.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation, and order our FREE book The Insider’s Guide to California Probate and Trust Administration.

Second Marriages Often Wreck the Execution of an Estate Plan

Wed, 07 Dec 2011 08:00:00 EST

The prevalence of divorces and remarriages has introduced a new dimension to the distribution of assets after death. Whereas most first-marriage families are united, most second marriages involve heirs whose interests can be widely divergent.

In a recent article published in Financial Advisor, San Diego probate attorney Scott Grossman says the problems start in community property states such as California. Both spouses have separate property (property they owned before the marriage) and community property (property acquired during their married life). A deceased spouse may dispose of his or her half of community property the way he or she wants, says Grossman, but cannot control what the other spouse does with the other half. The asset distribution may not always end in tears, but it is often the case. “Money changes people, in my experience,” says Grossman, “I can tell you I am seeing more of these cases as we get to the generation that didn’t frown on divorce and remarriage.”

Examples abound of estate plans that did not take the conflicting interests of stepparents and first and second marriage children into account, which ended up in acrimony and contention. Heirs and beneficiaries see no reason to collaborate or compromise, and they may be driven by a long-accumulated frustration to fight for their rights, often paying a heavy price as decisions become purely emotional.

Probate administration and estate planning professionals all seem to agree that second marriages often lead to confrontational and highly emotional situations, made worse if the decedent failed to plan for the distribution of his estate, failed to recognize the underlying conflicts, and trusted verbal promises and statements of intentions rather than legal steps and written documents.

Formal Creditor Claim Not Necessary to Pay Utility Bills in California

Tue, 06 Dec 2011 08:00:00 EST

As developed in a separate article, the process of paying debts owed by a California estate requires notification of the creditors, who then file a claim. For some types of expenses, this formal procedure is not practical and may be unnecessary. As such, the personal representative is allowed to settle all bills that can be considered “bona fide” (in good faith) debts as long as he or she is convinced that no one will object to the payment, and the estate is solvent.

This could involve the payment of:

Utility bills
Charge account balances
Medical bills
Real estate and income taxes
Funeral expenses
Other properly documented invoices that are in possession of the personal representative

The representative may settle these debts under the following conditions:

The demand for payment has been received within four months after the Letters Testamentary have been issued.
The debt is fully justified and takes into account all previously made payments or credits.
Payment is effected within 30 days of the end of the four-month period mentioned under point 1.
The estate is solvent.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider’s Guide to California Probate and Trust Administration.

Paying Bills, Investing, and Collecting Funds for a California Estate

Mon, 05 Dec 2011 08:00:00 EST

Some people might think that, when a person dies in California, his or her bank account will be frozen for a long period. This is not exact. The bank will release the funds to the representative upon presentation of a copy of the letters (the formal court appointment of the representative).

The personal representative will transfer all the decedent's bank accounts, including those outside California, to his or her name. Having access to the estate's cash, the representative will be able to pay taxes, bills, court costs, publication fees, etc.

All funds collected, such as dividends and interest on securities, will be deposited on the estate's account.

Do not mingle your own accounts and those of the decedent.

Right after the person's death, the family members will incur a number of expenses that ought to be charged to the estate, such as burial expenses. The representative's first task will be to reimburse those who have paid the charges up front. His second concern will be to collect the funds owed to the decedent and the estate, and, finally, to establish a list of creditors who will be paid with the estate's cash funds.

Every single transaction must be recorded and documented.

The representative's duty will also lead him or her to sell securities when necessary to generate cash in order to pay debts and to invest excess cash into safe and short-term accounts. Under California probate code, this means:

Interest-bearing accounts
Government obligations maturing in five years or less
State of California obligations maturing in one year or less

It is important for the representative to remember that the estate is a separate taxpayer, which is why most banks will require a taxpayer identification number. The IRS will supply this number (applied for with Form SS-4), which can be used both for federal and state income tax returns.

The Finishing Line: Filing for Discharge from California Probate Duty

Mon, 05 Dec 2011 08:00:00 EST

For the executor (if there was a will) or the administrator (in an intestate succession) the moment cannot come too soon. At last, the decedent’s estate has been inventoried and appraised, all creditors have been paid, and all assets have been distributed to their rightful heirs and beneficiaries.

The personal representative now wants to be discharged from his or her duties by the California probate court. The representative fills out the Ex Parte Petition for Final Discharge and sends it to the court with the necessary enclosures. When the judge signs the form for approval, the process is closed and the representative is discharged from any further duties.

It is better not to send the form too quickly. After the distribution of the assets, the representative often has to sign more papers related to the transfer, such as fiduciary income tax returns.

If the representative had to post a bond while administering the estate, he or she should send a copy of the Order of Final Discharge (a copy of the Final Discharge signed by the judge) to the bonding company to cancel the bond and recover any unearned premium.

A surety bond premium is usually not refundable for the first year, but it should be refunded pro rata of the elapsed time after that.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider’s Guide to California Probate and Trust Administration.

Confronting the Will with Reality under California Probate Rules

Sat, 03 Dec 2011 08:00:00 EST

What is in the will and what is in the estate can be very different things. When the personal representative of the estate has made the detailed inventory of the decedent's property, called a Schedule of Assets, there may be many important differences between what the will intended to transfer, and what is available for distribution.

Some examples of what may have caused the discrepancy:

The decedent sold assets mentioned in the will and spent the proceeds
Beneficiaries named in the will have died
Assets described in the will have been replaced by other assets
The ownership of property destined in the will to a beneficiary is held in joint tenancy
There is not enough cash in the estate to distribute according to the will
The will was not updated after a divorce or termination of a domestic partnership
The will fails to mention children born after the will was created

If the heirs and beneficiaries are in a position to understand the decedent's intention, and all agree with the resulting final distribution proposed by the personal representative, then there will be no problem as long as the agreement is clearly detailed and signed for approval by all the interested parties. If there is a hint of contest or disagreement, it may be advisable to consult with an experienced California probate lawyer to make sure that the interpretation is correct or to decide if the case is better left to probate court.

How Do You Clear Title to California Real Property in Joint Tenancy?

Fri, 02 Dec 2011 08:00:00 EST

Property deeds are legal documents that grant or assign ownership from the seller to the buyer of real estate. All real property deeds are recorded in the county courthouse.

Records will show the current owner and the status of mortgage or other liens affecting real property. All records are now accessible electronically.

Under California probate law, when real property - land or property permanently attached to land, such as a house, trees, fences...- is held in joint tenancy, the share held by the decedent is transferred by right to the surviving tenant. This change of ownership is to clear joint tenancy title to the property, and the best way to do this is for the representative to use an Affidavit. An Affidavit is a written sworn statement. In this case, the form to use is called Affidavit - Death of Joint Tenant.

On this form, the representative:

States that the decedent named on the attached death certificate is the same person mentioned on the original deed as a joint tenant
Refers to the deed and the appropriate record where it can be found
Has the surviving joint tenant sign the Affidavit in the presence of a notary public

Sometimes, when more than two joint tenants had a share in the ownership of real property, the representative of the estate finds out that a predeceased joint tenant did not formally end his interest, and the above-described process needs to be preceded by the same formality concerning the previously deceased joint tenant.

The representative will remit the Affidavit jointly with a Preliminary Change of Ownership Report, which is a standard form to report the transfer of ownership from the deceased to the new owner.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

Putting a Value on Tangible Personal Property in California

Fri, 02 Dec 2011 08:00:00 EST

In many estates probated in California, the decedent’s list of assets includes a number of personal property items qualified as tangible personal property. These assets are usually listed on Attachment 2 of the Inventory and Appraisal Form supplied to the probate referee.

Tangible means property that you can actually “touch,” and the term usually refers to:

Jewelry, art, coins, and antiques. These items, if valuable, can be appraised by an expert or reputable dealer chosen by the personal representative, and he or she will transmit the appraisal to the probate referee.
Mobile homes. It is important to determine at once whether a mobile home is truly mobile (personal property) or affixed to the land (in which case it becomes real property). The representative should supply the probate referee with the latest tax bill for the property where the mobile home is located and a copy of a Department of Housing registration, if any.
Vehicles and boats. The representative needs to supply the most recent registration of each item and the mileage or engine time, as well as a description of the item’s condition.
Livestock and breeding animals. The referee needs to know each individual animal’s record and pedigrees (for a racehorse, breeding record and race records) as well as name, age and sex. It is best to include an expert evaluation of the animals.

Putting a Value on Things Under California Probate Law

Thu, 01 Dec 2011 08:00:00 EST

Part of the decedent’s estate, listed on Attachment 2 of the Inventory and Appraisal Form, will need to be appraised by a referee, whom the California probate court will appoint. This includes assets in the following categories:

Real property, such as land, houses, farms, commercial property, life estates, stock cooperatives…
Business interests, such as interests in corporations, partnerships, or sole proprietorships.
Tangible personal property, such as jewelry, art, collections, motor vehicles, boats, airplanes, livestock, breeding animals…
Promissory notes, securities, and other interests, such as patents, rights, royalties…

On the other hand, the personal representative will list on Attachment 1 everything that has a defined monetary value. He or she will then mention the value of each item as established on the day of the decedent’s death. These assets include:
Money, checks, and other items that can immediately be converted into cash
Checks issued after the date of death relative to a situation existing before that date, such as tax refunds, refunds of utility bills, medical insurance payments…
Bank accounts and certificates of deposit
Money market funds, such as a brokerage cash account
Insurance proceeds or retirement funds payable to the estate

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE legal book The Insider’s Guide to California Probate and Trust Administration.

Valuing a Decedent's Stocks and Bonds in California Can Be Tricky

Wed, 23 Nov 2011 08:00:00 EST

After the death of a loved one, the named or appointed personal representative's first task under California probate law will be to prepare a Schedule of Assets (a process already described in several articles on this website). If the decedent owned a large portfolio of stocks and bonds, each security will have to be listed and identified, and the nature and type of ownership will need to be indicated.

US Treasury Bills can be issued either in a single name or in co-ownership (two names joined by "or"). In the latter case, one must treat them as held in joint tenancy.

Stocks and bonds need to be valued at the date of the decedent's death. The price should be the average of the highest and the lowest quote during the day of trading. If the decedent died on a weekend or any day where no trading took place, the value should be set taking the average of the highest and lowest traded prices on the trading day immediately before and immediately after the decedent's death. In certain cases, the calculation must be a weighted average.

Stock dividends may have been declared before the date of death, to be paid after the decedent died. The value of the dividend should then be added to the value of the stock.

Bonds present a similar problem when accrued interest is due but has not yet been paid. To calculate accrued interest, one has to multiply the daily interest with the number of days between the last interest payment and the date of death.

It can be tricky and time-consuming to put the correct value on each type of securities. If the size of the portfolio justifies it, the estate security valuation service of a reputed stock brokerage firm can perform this work. The cost is limited, and they can probably handle the job in a very short time.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

Which Assets Go Through California Probate and Which Do Not?

Sun, 20 Nov 2011 08:00:00 EST

When the personal representative prepares a Schedule of Assets, which is a complete list of all the decedent's property, he or she indicates the value of each item and the type and share of ownership. This serves as the foundation of the process to distribute the estate to heirs and beneficiaries. The personal representative must, however, also indentify the way the assets must be transferred under California probate law. There are three possibilities:

Property not subjected to probate. Independently from the dispositions of a will, assets generally do not have to go through probate if they are, by law or by contract, entitled to a determined beneficiary, such as life insurance proceeds, death benefits, and assets held in trust or in joint tenancy.
Property subject to "summary" probate. This principally concerns property transferred automatically to a surviving spouse or domestic partner or assets that, taken as a whole, are valued within the limits of a "Small Estate." The summary probate procedure is in fact so simple that these assets can be considered as "non-probate."
Property subjected to formal (court) probate. This category includes anything that does not fall in the former two categories.

Debts
To establish the nature and value of the decedent's estate, one should only consider the gross value, i.e., the value of each item without regard to the amount owed to third parties. For example, the market value of a house at the time of the decedent's death would be considered without subtracting the balance owed to the mortgage loan institution.

When preparing the Schedule of Assets, the executor or administrator will have to list per property item the debts and obligations owed to third parties. This will be very useful at various later stages of the probate or transfer process.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

When Should a Final Income Tax Return Be Filed in California?

Fri, 18 Nov 2011 08:00:00 EST

The personal representative of the estate will have to see that the decedent's final income tax returns for the previous taxable year are filed before April 15^th, just like anybody else's, if the decedent died during that previous taxable year.

If the person passed away in the beginning of the current year before filing a return for the previous year, the personal representative will see that a return is filed immediately for income during the previous year. A final return will be filed before April 15^th of the next year for income generated in the early months of the current year.

Fiduciary Income Tax Returns

Income produced from assets in the decedent's estate is taxable just like personal income. These are usually filed using federal form 1041 and California form 541 and are called fiduciary income tax returns.

Fiduciary income tax returns are required if the estate is subjected to California probate. During the sometimes long period necessary to probate the estate, assets may generate income that has to be reported before they are distributed. If the personal representative sells assets, there may be a tax levied on the capital gain.

If the estate is distributed without passing through probate, the beneficiaries will report the fiduciary income when they file their own tax return.

How Do You Calculate the Value of the Estate for Tax Purposes?

Thu, 17 Nov 2011 08:00:00 EST

In previous article on preparing the Schedule of Assets under California probate rules, we showed how the personal representative must proceed to calculate the estate's gross value. This value, called the probate value, is not the same as the value determined for federal estate tax purposes.

The federal estate tax return considers all property in which the decedent had any interest. Assets that do not have to pass through probate and are left out of the probate value still have to be entered in the federal estate tax return. The most common are:

Joint tenancy property
Pay-on-death accounts
Life insurance policies
Property placed in living trusts
Pensions, annuities, death benefits...

Life insurance policies require particular attention. The proceeds of an insurance contract on the decedent's life will be included in the federal estate tax value, if one of the following applies:

The proceeds are receivable by the estate.
The proceeds are receivable by another person for the benefit of the estate.
The decedent possessed "incidence of ownership" in the policy.

This means that the subscriber of the policy, in order to avoid having to pay federal estate taxes, must transfer the complete ownership, rights, and control over the policy to another person during his or her lifetime.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and the questions you have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order now our FREE book The Insider's Guide to California Probate and Trust Administration.

Do You Suspect Fraud by the Executor of a California Estate?

Sat, 12 Nov 2011 08:00:00 EST

The decedent's will, under California probate law, not only decides how the estate is to be distributed, but often states who will be in charge of managing the process. Nominating a child, spouse, or other family member as the estate's executor is perfectly normal. What could happen, though, is that many years after the will has been written, the named executor has stopped getting along with the rest of the family, or does not live up to their expectations of integrity, competence, or diligence.

As a "fiduciary" of the estate and beneficiaries, the executor has a duty of trust and responsibility. This means that, if you suspect the executor is engaging in fraudulent activities or mismanagement, you have options.

After you have collected evidence of the executor's misconduct, you can file a petition with the probate court to compel the executor to abide by the dispositions of the will. If the court agrees with your allegation, the court will order the executor to correct the situation within a specific deadline. Failure to do so will prompt the court to consider his or her removal as executor of the estate. The court may appoint a new executor or agree to one proposed by the heirs and beneficiaries.

You may also file a petition for an accounting. If accepted by the court, the executor will be required to provide a detailed accounting report of all the amounts and assets that have come in and out of the estate. If there is evidence of theft, criminal charges may be filed in a civil court.

Finally, the California probate code authorizes the removal of an executor if he or she:

Has embezzled, mismanaged, or wasted the assets of the estate
Has committed fraud or is planning to do so
Is incapable or unqualified to execute the duties
Is negligent and fails to act
Or for any other reason authorized by the law

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and any questions you might have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation, and order our FREE book The Insider's Guide to California Probate and Trust Administration.

California Small Estates Procedure May Apply to Big Estates

Sun, 06 Nov 2011 08:00:00 EST

The advantage of using the simplified procedure allowed to small estates in California has been stressed in several articles already: it offers a much lower cost and faster conclusion than the usual probate process. The problem is that many estates exceed the limits set forth in the California probate code. Or do they?

Apart from the recent increase of the limit for small estates - to $150,000 as from January 1st, 2012 - there are also many assets in the decedent's estate that do not have to be included in the estate's evaluation, such as:

Property held in joint tenancy
Life insurance policies with named beneficiaries
Community property transferred automatically to a surviving spouse or domestic partner
Pay-on-death accounts
Real estate outside California
IRA, 401K, or other funds that pass to named beneficiaries
Wages or other compensation owed the decedent, not exceeding $5,000 (increased to $15,000 as of 01/01/2012)
Property held in trust
Amounts due the decedent for service in the armed forces
Registered motor vehicles

If the majority of the estate's assets fall into one of the above categories, the Small Estates procedure may be all you need to transfer the remaining personal property.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and any questions you might have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

In California, Transferring Securities Requires Many Documents

Fri, 28 Oct 2011 08:00:00 EST

The transfer of the deceased's stocks, bonds, or mutual fund shares can be a complex process for the estate's personal representative, even if part of the process can be outsourced to a bank or stockbroker. The representative's role will be to submit the necessary documents to the transfer agent, and the nature of these documents varies depending on the way the securities were owned and the estate is distributed.

If the securities were held in tenancy in common with a surviving person, the decedent's part may be subjected to California probate, while the surviving person's is not. This means that two new certificates will be issued -- one in the name of the beneficiary of the decedent's part and the other in the name of the living tenant in common. A probate court order, however, is only necessary for the decedent's share.

To transfer title to the heir or beneficiary of the decedent's interest, the personal representative will have to submit the following documents:

A letter to request the transfer, which gives the name, address, and Social Security number of the new title owner
An Affidavit of Domicile bearing the notarized signature the representative
A stock power, signed as above
Certified copies of Letters Testamentary or Letters of Administration
The original stock, bond, or debenture certificates

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE lawyer book The Insider's Guide to California Probate and Trust Administration.

Putting the Right Value on Tangible Personal Property in California

Sat, 22 Oct 2011 08:00:00 EST

The Decedent's Fur Coat May Not Be Worth Much to You...

Having looked at the decedent's bank accounts, insurance policies, real estate, and stocks and bonds, the estate's representative is now faced with an often large number and wide variety of personal property, which is called "tangible" because you can actually touch it. Under the California probate code, personal property is everything that is not "real property" (land and buildings).

How does one treat tangible property, such as clothes, jewels, tools, furniture, etc.?

Except for motor vehicles (motorcycles, cars, boats, or motor homes) that are registered under a person's name, most tangible personal property is often simply reputed to belong to the decedent. As is the case of real property, the law requires tangible property to be transferred in accordance with the procedures of the state where it is located. In practice, because most tangible property (even motor vehicles) can be moved to the decedent's residence at the time of death, the laws of California will apply in most cases.

Putting a value on tangible assets

The main difficulty for the estate's representative will be to list the sometimes huge number of items clustered under the category "tangible personal property." It will be necessary to simplify the process by grouping similar objects under a general denomination and appraising the value of the grouped items. Under the heading "furniture" or "clothes" or "books," a specialist can appraise the value, even if the grouped items are split among heirs or beneficiaries at a later stage. If the estate goes through probate, the appraisal will be done by a court appointed referee.

You need to bear in mind that all values are second-hand (resale) values, often much lower than the initial acquisition cost.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

The Value of Insurance Policies in California Probate

Tue, 18 Oct 2011 08:00:00 EST

When the administrator or executor of a California estate starts looking at the decedent's insurance policies, it may not be immediately clear what needs to be done.

First of all, each policy will have to be carefully analyzed to determine who owned it and if the ownership was separate or in community. If the insurance premiums were paid with community funds, then the policy may be community property. The estate's representative may have to write the insurance company to obtain confirmation of the names of the owners.

The second step is to find out what the policy covers. Is it insurance on the life of the decedent? In this case the policy may have a substantial value that will be distributed to a named beneficiary (outside the probate process) or to heirs or beneficiaries.

If an insurance policy covers the life of someone other than the decedent, such a policy is considered an asset of the decedent's estate, and its cash value will have to be included in the decedent's estate.

The cash value of a life insurance policy is not the same as its face value. The cash value is usually based on the total amount of the premiums that have been paid by the subscriber since the contract was made. The insurance company will issue a Life Insurance Statement to confirm the cash value of the policy.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

A Few Words about Life Tenancy in California

Tue, 11 Oct 2011 08:00:00 EST

Ownership of property can take many forms, which have been created to solve particular situations. One such form of ownership in California is called Life Tenancy or Life Estate.

What Is the Purpose of a Life Estate?

Consider an elderly uncle who owns and inhabits a home, which he would like to transfer to his nephew upon his death. The uncle has the ability to deed the property to his nephew with a provision saying: "Grantor (the uncle) reserves to himself a life estate in said property."

This would give the uncle the ownership and use of the house up to the moment of his death, at which point the ownership is automatically transferred to his nephew.

Because the home is not included in the decedent's estate, it does not have to be probated under California probate law.

In larger estates, a Life Tenancy can also reduce federal estate taxes on the decedent's real properties. The real property covered by the Life Estate isn't included in the decedent's estate because the Life Estate terminates at the moment of death, and the property is then owned by someone else.

Life Estate is a simple form of estate planning that allows the owner to direct the transfer of property several years in advance of his or her death.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call our lawyers at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE legal book The Insider's Guide to California Probate and Trust Administration.

You Cannot Always Tell For Certain Who the Owner Is

Sat, 01 Oct 2011 08:00:00 EST

Trying to figure out how personal and real property is owned in a California decedent's estate is not always straightforward. Property can be separately owned, in which case there is no need to investigate any further, or concurrently owned. The latter means that there is more than one owner, which includes:

Tenancy in Common
Joint Tenancy
Community Property (with right of survivorship or not)
Life Tenancy

California has community property laws that apply to property acquired during marriage or domestic partnership. These laws give spouses and domestic partners equal interest in property they accumulate during the marriage or domestic partnership, including earned income and property purchased with earned income.

After the death of a spouse or domestic partner, it can become far more difficult to determine who inherits what if specific assets are a mixture of community and separate property. This could be the case when property is received over a period of time, and marriage or divorce (or registration or termination of domestic partnership) takes place during this period of time.

Examples of mixed community and separate property

Contract Rights: High-income executives or celebrities may receive compensation over a period of time, based on work performed. The property will be considered community if the right to payment, and not the payment itself, arises during marriage or partnership.

Insurance Proceeds: The extent to which proceeds from life insurance on a spouse or partner are considered community property depends on the proportion of the premiums paid with community funds -- not on the person named as a beneficiary of the policy.

Improvement to Property: The difficulty arises when one spouse or partner uses community funds to make improvements to a property owned separately and vice-versa. Each case will have to be studied on its own merits.

Pensions: Regarded as compensation for work previously performed, retirement income is deemed community property in the proportion of the period during which the retiree was married over the entire period pension rights were earned.

Most cases of mixed community and separate property require careful examination to determine who owns what. Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

What Exactly Does "Tenancy in Common" Mean in California?

Tue, 27 Sep 2011 08:00:00 EST

Tenancy in common is one of the forms under which more than one person may own property under California law. The other forms of concurrent ownership give surviving owners an automatic right to inherit property if one of the owners dies, but this is not the case for property held under tenancy in common rules. It is said that the tenants in common each have an undivided interest in the property, which means each of them owns a fractional share of the entire property, and their ownership does not automatically give them a right to inherit the portion of another tenant in common upon his or her death.

Can tenants in common own unequal shares of a property?

If a property is to be shared unequally among various co-tenants, their respective shares need to be stated unequivocally in a written agreement signed by all tenants in common.

Barring such document, the ownership is presumed to be shared equally among the co-tenants: one half each if there are two, or one third each if there are three, etc.

How do we know if property is held under "Tenancy in Common" rules?

Tenancy in common must be backed by ownership documents stating specifically that this is the form of ownership, mentioning the names of the various co-tenants, their respective shares (especially if unequal), and the words "tenants in common" or "tenancy in common."

Moreover, and this is important, concurrently owned property (property held by more than one owner) that is not backed by a document stating specifically that the property is owned in joint tenancy or as community property, is presumed to be held as tenancy in common.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

Dealing with Gifts of Money

Fri, 16 Sep 2011 08:00:00 EST

No matter how much the decedent wanted to make it easy for his or her survivors, there is often a long time gap between the moment the will is written and the time of death. During this interval, the nature of the assets of the deceased person may have changed, as well as the size of the estate.

Gifts of money are a case in point, because they are not tied to any specific items. And there may just not be enough cash available to meet the will's dispositions. How does California probate deal with such a case?

If a will leaves $40,000 each to two different people (designated as A and B in our example), and there is only $50,000 available in liquid assets, then what is about to happen?

If the decedent has other property in the residuary estate - the part of the estate not allocated to specific beneficiaries - then named beneficiaries A and B would first split the $50,000 the decedent left and then take assets from the residuary estate to make up the difference. This often involves selling property.

If the decedent did not leave assets other than the $50,000 in cash, beneficiaries A and B would split the $50,000 in proportion to their original shares (each would receive one-half in our example). This is assuming A and B were either both related or both unrelated to the decedent. If B was related to the decedent and A was not, B would receive her full share ($40,000) leaving the balance ($10,000) to A, because probate law gives priority to a spouse, domestic partner or relative of the decedent.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

What is "Right of Representation" under California Probate?

Wed, 14 Sep 2011 08:00:00 EST

If a decedent left a will requesting property to be transferred to someone who is no longer alive, then to whom does the property go? Under the California probate concept of "right to representation" (also called "per stirpes"), the descendants of the deceased beneficiary have a collective right to inherit the property that the originally-intended beneficiary would have taken if living at the time of the decedent's death.

The application of this concept is more complicated than would seem at first sight, and it is recommended that you consult with probate attorney Scott Grossman if you are in such a situation. The reason is that there are two legal meanings to "right of representation."

It is essential that you determine the formula that applies to the estate you are concerned with:

Formula 1: You must first identify the closest generation of issue that has living members. This means the children and, if there are no living children, the grandchildren's generation, and so forth. The property is divided into as many shares as there are living members and issue of deceased members of that generation. Each living member of the generation gets a share, and the issue of a deceased member takes their ancestor's share.
Formula 2: If the will expressly directs that the inheritance should be conducted by right of representation or per stirpes, a different system should be used. Under formula 2, a generation that has no living members is not ignored, like in the previous formula. This means that the estate is always first divided at the children's generation, even if none of them are alive, and then among the grandchildren, living or not, and so forth.

Probate law in California covers just about every possible case, but it takes practice and knowledge to correctly translate the law's wording into the right practical steps, just like it takes experience to find the probate code statutes that are applicable to your case.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

What Does "Prove the Will" Mean Under California Probate?

Wed, 07 Sep 2011 08:00:00 EST

The existence of a will is crucial in determining the way probate is handled in California. Many people feel the need to talk about and write down how they want their assets distributed after they have left this world. However, discussing your intentions and writing them down on a piece of paper do not constitute a will that can be accepted under probate law. A will must be proven or be self-proving in order to be valid.

How Do You Prove a Will?

To prove a will, it must be shown that:

Either the decedent signed it in front of witnesses, declaring that it was his or her Will, or
The witnesses understood that it was his or her Will.

This is accomplished by having the witnesses sign a formal declaration to this effect, which is attached to the will and stamped by the court's clerk.

If the decedent made a signed and handwritten will, someone who knows the decedent's handwriting will make and sign a declaration to confirm that the will was written by the decedent. Another proven will could be a commercially printed will-form containing a statement of testamentary intent with the decedent's own handwriting and signature. Such documents are called holographic wills.

Some documents are accepted as self-proving, which means that the court does not require a written confirmation by someone who knows the decedent's handwriting. If the will contains a self-proving clause and is signed by the witnesses under penalty of perjury declaring that the document was executed according to California law, then the document may be accepted as a self-proving will. If someone questions the validity of the will, the court may request additional evidence.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

What Are the Advantages and Drawbacks of Joint Tenancy in California Probate?

Tue, 23 Aug 2011 08:00:00 EST

Assets can be owned by more than one person. When real estate, a bank account, or other assets are identified by the words "joint tenants" or "in joint tenancy," it means that the other joint tenant becomes 100% owner of the property if the joint tenant dies. If there are more than two joint tenants, the death of one of them simply reduces the number of surviving owners.

What happens if the decedent's will contradicts the transfer of joint tenancy property?
Joint tenancy means that more than one person has full ownership rights over a property. The death of one joint tenant simply leaves the surviving one as sole owner. This arrangement supersedes whatever is written in the will.

Is joint tenancy the same as tenancy in common?
In tenancy in common, the co-owners of a property each own a share of the total. The shares may or may not be equal. Each share is subject to succession according to dispositions detailed in a will, a trust or intestate probate.
Contrary to joint tenancy, tenancy in common may be subject to probate.

What are the disadvantages of joint tenancy?
Joint tenancy is not the best solution for assets that can increase in value over time, such as real estate. The reason lies in the capital gains tax that may be charged to the new sole owner of the property. In opposition to what happens to assets held as tenancy in common or as community property, the surviving joint tenant does not receive a "stepped-up cost basis" to fair market value, which would allow him or her to avoid the capital gains tax. This problem, however, only arises if the calculated capital gain exceeds $250,000.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

What Are the Specific Duties of the Estate Representative?

Sun, 21 Aug 2011 08:00:00 EST

Under California probate law, if you have been appointed as the estate's representative, either as the executor or as the administrator, you have your work cut out for you. You must take possession of the decedent's property and keep it safe until the probate process is over (i.e., until all the obligations of the estate have been met, and the balance of the assets has been properly distributed). More, specifically, this means that you will:

Determine the decedent's legal residence
Locate the will, if any, and make copies
Order certified copies of the death certificate
Determine who will be the heirs and beneficiaries, and collect their contact coordinates
Collect insurance proceeds, Social Security, and other benefits
Make the decedent's final income tax returns
Assemble and list assets, such as bank accounts, accounts receivable, stocks and bonds, business interests, real estate, antiques, jewelry, collectibles, other personal assets, and life insurance
Classify each item of property as community, separate, or in joint tenancy
Get the value of each non-monetary asset appraised
List the unpaid debts and obligations of the decedent, like funeral and last illness expenses, income and other taxes, liens on real or personal property, outstanding personal and credit card debts, and legal, court, and administration fees
Determine priority of debts, and pay them in order of priority as estate funds become available
Prepare and file US estate tax return if required
Determine method of transferring assets to heirs and beneficiaries

The above list only shows that, for the personal representative to conduct his or her business properly and respect the required fiduciary duty, he or she would be well advised to hire a probate counselor who will not only take over a great part of the burden, but will make sure no time is lost and no mistakes are made that could harm the estate or the personal representative.

Talk to San Diego probate attorney Scott Grossman about what your situation is and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

What Are Your Responsibilities as Administrator Under California Probate?

Thu, 18 Aug 2011 08:00:00 EST

If you are about to be appointed to act as the administrator of an estate under California probate, you may be asking yourself: What are my responsibilities? Will I be up to the job?

The job is likely to be far more tedious than glamorous or rewarding, and it does not require any special qualifications or training. The foremost responsibility you are taking up is to be trustworthy and organized.

Organization

Your organization skills are even more important if the deceased person was negligent and disorganized. Understanding the decedent's affairs will be a gradual process, and you should not allow yourself to be discouraged if you are still confused after a couple of weeks. The first thing you need is a method to classify the information.

Classifying the Information

File all the collected information in separate folders by category, such as:

Unpaid bills
Copies of income tax returns
Official documents, like the will and death certificate
Insurance policies
Real estate information
Bank, credit card, and brokerage accounts
Business information

You may want to consult a probate checklist that will help you organize your filing system.

As you progress in the probate process, you will open new folders reflecting the various steps, for example: Probate Bond, Creditor Notification, Value Appraisal, Inventory, or Distribution.

The Administrator's Fiduciary Duty

The most important duty of the administrator is to protect the estate and to manage the assets in the best interests of all those involved in the estate, including creditors and taxing authorities, until the estate is properly distributed among the rightful heirs. The administrator is not required by law to be an expert in financial or asset management, but there is a specific requirement that the administrator be honest, impartial, and diligent. This is called the fiduciary duty, which is a duty to act with scrupulous good faith and candor.

If the administrator breaches the fiduciary duty, he or she may be held personally liable for any damages and may even be charged criminally if estate money was used for his or her own needs.

Talk to San Diego probate attorney Scott Grossman about what your situation is and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

Understanding Who Is Named in a Will

Sat, 13 Aug 2011 08:00:00 EST

A will may mention an heir or beneficiary by name, which is usually not subject to wrong interpretation. However, it is frequent that wills in California refer to groups of people, like "my children," "my issue," or "my heirs." It is important to understand precisely what these terms mean.

Issue
The term "issue" means all natural children and their children down through the generations. As an example, property allocated to someone's issue would go to that person's children, and if none survive, the property would go to the children's offspring, if any. Adopted children are considered issue of their adopting parents, and the children of the adopted children are also considered issue.

Lineal Descendants
This term is often used in place of "issue."

Children
"Children" might seem like a straightforward term, but a closer look at the definition reveals many subtleties:

Biological offspring, unless they have been legally adopted by another
Legally adopted persons
Children born out of wedlock, if the parent is the mother
Children born outside marriage, if the parent is the father and he has acknowledged the child as his under California law
Children born to registered domestic partners (legally considered the children of both partners)
Stepchildren and other children if a family relationship with the decedent began during the child's minority and continued throughout both parties lifetime, and if it is established that the decedent would have adopted the person were it not for a legal barrier. For a more precise definition of family relationship, you should consult your probate attorney.

Heirs
An heir is a person who inherits in the absence of a will (intestate probate) according to a share and an order of priority established by the California probate court. When there is a will, those who inherit are named beneficiaries. When there is a will but part of the estate is not disposed of in the will, that part will be distributed among the heirs.

Talk to San Diego probate attorney Scott Grossman about what your situation is and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

When Do You Need a Bond in California Probate?

Sat, 06 Aug 2011 08:00:00 EST

The purpose of a probate bond in California probate is to protect the estate in case the value of the estate declines as a result of the personal representative's mismanagement or misconduct. If that is the case, then the bond will be freed to make the estate whole again.

Obtaining such a bond can be costly, and the price depends on the value and nature of the property subject to the bond. This is why, oftentimes, the decedent's will includes a waiver of the bond requirement. In such a case, the California Probate Court will often, but not always, waive the bond.

Another way to avoid the bond requirement is to have all the beneficiaries agree to waive the bond. Even so, if the personal representative resides outside California, the court will probably require that he or she be bonded.

The personal representative, executor or administrator of the estate, must qualify for a bond. Qualification depends on the representative's net worth and creditworthiness. Personal representatives who do not qualify could still find a solution if their attorney maintains control over the estate account.

When the will does not waive a bond or the personal representative resides out of California, a request for a waiver of bond to the court must include a declaration that states:

The number of unsecured creditors of the estate and the estimated liability to them
All estimated tax liabilities
The amount of any known contingent liabilities
Whether the estate is solvent
The due diligence performed to establish the above information

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at 951-683-3704 or 866-840-0000 for your FREE 30-minute telephone consultation.

Filing a Probate Petition in California?

Thu, 28 Jul 2011 08:00:00 EST

The California probate process starts with the filing of a Petition to the Superior Court of the county where the decedent lived at the time of his or her death. The petition uses Form DE-111, which needs to be filled out carefully, including checking the right boxes to decide on:

The type of probate you are doing.
Publication information.
Whether bond is waived or not.
The estimated value of the estate. This is a preliminary rough estimate of the estate. During the process an accurate value will be determined.
Personal representative. Indicate who will act as the personal representative, serving either as an administrator (if there is no will or if the will doesn't name a representative) or an executor (if there is a will).
The survivors and beneficiaries. This part of the form can be confusing. Who survived the decedent and will receive notice of the petition? Indicate if there is a spouse or domestic partner and no issue (this means no children or grandchildren) or if there is no spouse and no issue. The people named in the will must also be mentioned, whether they are living or deceased.

There are a number of other forms that must be enclosed in the Petition for Probate, such as:

Notice of Petition to Administer Estate
Duties and Liabilities of Personal Representative
Order for Probate
Letters
Confidential Supplement

Talk to San Diego probate attorney Scott Grossman about what your situation is and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30 minute telephone consultation.

What Does a California Probate Lawyer Do for You?

Sun, 24 Jul 2011 08:00:00 EST

We have already stressed that it is unwise to probate in California without a legal counsel, and even the California Probate Court recommends the assistance of a probate attorney.

These are roughly the actions that San Diego probate and trust administration lawyer Scott Grossman takes in a probate process:

Lodge the will with the probate court
Discuss the assets with you and take any immediate action
Draft the pleadings to file with the court to have the will admitted to probate or to have the court appoint you as administrator
Appear at the first hearing date
Collect your letters of administration
Draft an inventory and appraisal for submission to the probate referee
Give notice to the Department of Health Care Services that the decedent has died
Send a copy of the inventory and appraisal to those who have requested special notice
Send out notices to known creditors
Discuss any creditor claims with you and draft the response to the creditor
Advise you on the sale of real estate
Draft your petition for the first and final account and file it with the court
Send a notice of hearing and a copy of the petition and account to the heirs and beneficiaries
Attend the hearing on the petition for the first and final account
When the account is approved, advise what checks should be issued, draft deeds to convey real estate to the proper beneficiaries, and advise how to perform any in-kind distributions that have been ordered
Draft receipts for each beneficiary to sign and draft an ex-parte petition to discharge the probate estate

At Grossman Law Firm, we understand what you are going through. We want to dedicate time and attention to our clients, which is why we are careful to discuss cases at length before we commit ourselves.

Ask San Diego probate attorney Scott Grossman any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30 minute telephone consultation.

California Probate: How Do You Notify Creditors?

Thu, 21 Jul 2011 08:00:00 EST

In California probate, the decedent's estate cannot be distributed before a number of hurdles have been cleared, like appointing the executor or administrator and making an inventory and appraisal of the estate. The estate's apparent value can be burdened by debt, and the successors of the estate do not always know what amount is owed and to whom. This is why, before going any further, the probate code requires notifying creditors and dealing with creditor claims.

Newspaper publication:
The California probate code requires three separate publications in certain newspapers and within certain time limits. In many cases, the newspaper can be a free weekly advertising publication. Proof of the publication must be filed with the court.

Specific creditors:
In the case of known or reasonably ascertainable creditors, the personal representative must give notice directly to the creditors before:
a) Two months after the date of issuance of the letters appointing the representative, or
b) Thirty days after the representative first becomes aware of the creditor, whichever is later.

One way to know of the existence of a creditor is if a demand or reminder of payment has been received from this creditor. All notices should be filed with the court with proof of service.

There is a time limit for creditors to file a claim. The general rule is that a claim is barred if it is filed later than
a) Four months after the date of issuance of the letters appointing the representative, or
b) Sixty days after the date a specific notice was given to that creditor, whichever is earlier.

Creditors must file their claim with the court and serve a copy to the personal representative.

Talk to San Diego probate attorney Scott Grossman about any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30 minute telephone consultation.

Proving a Lack of Capacity: Contesting A Will Or Trust For Lack Of What?

Mon, 18 Jul 2011 08:00:00 EST

A common way to challenge the validity of a Will in the process of distributing the deceased person's estate is to invoke the testator's lack of testamentary capacity at the time the Will was executed. Basically, a person lacks testamentary capacity if he or she fails to:

Remember and understand the relationship with relatives, such as a spouse, parents, or living descendants
Understand and remember the nature and situation of his or her property
Understand the nature and effects of the Will

Heirs who have watched a parent decline from a state of healthy activity and mental sharpness to one of increasing forgetfulness, dementia, or impairment during his or her last years tend to react to a Will that denies them a part or the entirety of the inheritance by declaring that the testator obviously lacked the necessary mental capacity when the Will was written.

How can a lack of testamentary capacity be established?

A dementing illness, such as Alzheimer's disease, may not by itself be sufficient to invalidate the testator's Will. Degenerative dementia is a gradual process that affects brain functions as the disease progresses, and it may be awfully difficult to prove the testator's incapacity when the Will was executed.

On the other hand, a testator may have suffered a stroke rendering him unable to understand anything spoken or read but still be perfectly capable of signing documents.

Other elements of the testator's mental health need to be carefully examined, usually by a neuropsychologist. The point is to analyze behavior and abilities with respect to brain functioning and pathology. The analysis can be performed when the testator is still alive or during an autopsy.

Talk to California will contest and trust litigation attorney Scott Grossman about what your situation is, what your goals are, and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30 minute telephone consultation. Our offices are located in Riverside and Temecula.

CA Trust Administration Tips: Everything Changes With Time. Your Will Should, Too

Thu, 14 Jul 2011 08:00:00 EST

In California, Wills cannot be changed simply by crossing out existing provisions and adding new ones. A Will is only valid until it has been changed, revoked, destroyed, or invalidated by the writing of a new Will.

Changes or additions to a Will can be included in a codicil, which is an addendum to the Will that must be written, signed, and witnessed just like the Will itself.

What happens if a Will is not up-to-date?

With time, the provisions of a Will become outdated. A trusted representative may have fallen out of favor with the testator, children may have married or divorced, grandchildren may have been born, and the size and nature of the estate may have changed significantly.

Alterations that should have been made to a Will do not invalidate the document, but its execution may create many headaches, take more time, cost more, and simply become unenforceable. In California, a divorce automatically revokes any distribution to the former spouse. A change of residency, particularly to another state, could also bring about considerable changes.

Each case will have to be analyzed by an experienced and skilled California probate law firm, like Grossman Law Firm, A.P.C.

Attorney Scott Grossman can also advise you on how to structure a Will in such a way that the signed and witnessed document can be left unchanged over the years, making reference to separately written detailed lists that can be updated without formalities.

Talk to California probate and trust administration attorney Scott Grossman about what your situation is, what your goals are, and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30 minute telephone consultation. Our offices are located in Riverside and Temecula.

Is probate litigation worth pursuing?

Thu, 02 Dec 2010 08:00:00 EST

I oftentimes receive calls from potential clients asking me if opening probate or pursuing probate litigation is worthwhile. The short answer is it depends. What it depends on is whether or not there's any money or assets that the decedent left behind. There's no reason to go to the time and expense of opening up a probate or filing a pleading to contest the probate if there simply no money to be had.

Here's an example from a recent call. A young man asked me about filing probate for his father's estate. The young man was one of two children from two separate mothers. He was concerned that his stepbrother would wind up getting everything if he didn't file for probate. The man explained to me that his father made a great deal of money during his lifetime but spent even more. The home he had been living in he had purchased with his girlfriend but had transferred to her his interest in the house over a decade ago. His father was an accomplished software engineer that worked for a large company. The man went on to explain to me the numerous debts his father had left behind due his father's inability to set aside any money for the future.

What came of this conversation was the realization that this young man's father had made a tremendous amount of money but he had spent everything he made and then some. A capable software engineer who should've left a sizable estate wound up leaving nothing but debts when he died. There was no money and there were no assets. There is no reason for this young man to spend his money and time to pursue this case.

My trustee won't give me my inheritance

Mon, 23 Aug 2010 08:00:00 EST

Maybe it's the heat but in the last two weeks it seems like I've gotten a steady stream of calls from people who are having trouble getting their trustee's to make a distribution to them. More accurately, the can't get their trustee to give them any part of their inheritance.

There are a number of reasons a trustee won't make a distribution. Probably the most common reason is the trustee doesn't understand the trust. Sometimes a trustee doesn't make the distribution because they're just plain lazy. Even though it's their job they still don't make distributions even when the trust calls for those distributions.

Some trustees won't make distributions because they've done something wrong and they're hoping to cover it up by not making the distribution. The trustee may have mismanaged trust assets or, in some cases, wrongfully taken trust assets for themselves.

Every case is different but the one piece of advice I give to every beneficiary who calls me saying they can't get their inheritance is don't wait, do something about it now! Have the trust reviewed by a trust litigation attorney. It's unlikely but maybe you are asking for something you aren't supposed to get from the trust. If the trustee is incompetent then they need to forced to act of they need to removed. If the trustee is crooked then you need to have your attorney get the distribution and a trust account so you can find out if you have gotten everything you are entitled too.

Do I really need a trust administration attorney?

Mon, 26 Jul 2010 08:00:00 EST

I received a call the other day from a deceased client's son. I created his mother's trust several years ago. Now that she was gone he needed to act as the trustee and administer the trust. Over the past several months he called a number of times to ask me questions. Finally, the time came for him to decide whether he was going to retain me to me as his attorney.

He asked me a question which I felt was simply stunning, "why should I hire you to be my attorney when the trust is already funded?" This obviously was an unfamiliar situation for him. He called me a number of times to ask questions because he didn't know what to do as trustee. I answered all those questions and he appeared to be grateful for the guidance. I explained to the son that as the trustee he was going to have many duties many of which he didn't even know he had. He described to me that of his seven siblings a number of them were hostile, even irrational. He would need to deal with all of them. If he wanted to avoid unnecessary litigation it would be advisable to formally administer the trust. I asked him if he had any experience in administering a trust. He did not. I asked him if he was familiar with the Riverside County probate court and its procedures. He wasn't. I asked him if he was familiar with any of the reporting requirements he had as a trustee. He wasn't. So I asked if you would like assistance from me to correctly administer the trust. He paused for a moment, formulated his response, and asked, "if the trust is funded why would I need an attorney?"

I then realized that the old adage you can lead a horse to water but you can't make it drink is still true.

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

Mon, 05 Jul 2010 08:00:00 EST

From time to time in California probate litigation and trust litigation cases I am asked by my clients to find assets they are sure exist but can't identify. Sound confusing? It has been for me. Here's an example, I represented two sons who were estranged from their mother. They reconciled to some degree a few months before she died. The sons were convinced their mother had a bank account with hundreds of thousands of dollars in it.

That part was fine. In nearly all my cases it is family members who provide at least a broad outline of what assets we should find and be able to recover. This case was different. The sons couldn't tell me what bank the account was in, when (generally) the account was opened, or where the money for the account came from. In short, they couldn't tell me anything about the account.

Their mother chose a friend to be the executor of their estate because she created her will while she was still estranged from her sons. So, I asked the executor about the account since it did not appear in the inventory and appraisal of assets for the probate estate. He didn't know of any additional accounts. My clients weren't satisfied. They were certain there was a bank account. Since the probate had dragged on for some time I checked with the unclaimed property office at the California Secretary of State's office. There was no report of money being turned over from any source in the deceased mother's name.

There was only one solution left, spend several thousand dollars on a professional asset search. My clients were absolutely unwilling to spend that amount of money to find the missing account. We were at a dead end.

The life lesson is to maintain good relationships with your parents so you don't ever find yourself in this type of situation. The legal lesson is to accept that nothing in probate litigation or trust litigation happens without a cost. Try the cheap and easy way first. If that doesn't work then move on to more expensive methods. If you aren't willing to invest the time and money then don't expect good results when an asset you can't identify isn't found.

Gary Coleman's parents abandon probate case

Sun, 06 Jun 2010 08:00:00 EST

Gary Coleman's parents gave up their bid to open probate of his estate when his will and a trust were provided by his attorney. Though estranged for years, Coleman's parents sought to open his probate in the belief Coleman had no will or trust. Since Coleman had no children, the parents would have had first priority to serve as administrator's of his estate. In addition, the parents would would be the only ones to inherit under the rules of intestate succession.

Since Coleman did have a will and trust the parents had not chance of being appointed administrator or inheriting. Presumably, Coleman put his assets in his trust. Since he was estranged from his parents it is a sure bet he appointed someone else to be trustee and named other beneficiaries to inherit his assets. Assuming Coleman left assets out of his trust and those assets need to through probate then he probably named the same person to serve as executor and trustee. The will almost certainly left all the assets to his trust.

Under these circumstances his parents knew they would not get control of his estate and would not inherit.

Estate tax uncertainty complicates trust administration

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

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

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

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.

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

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.

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

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.

The right way to sue a probate estate

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

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

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

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?

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.

Will contest commentator misunderstands Leona Helmsley estate litigation ruling

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.

Redlands Probate Court to close

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.

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

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.

Riverside probate lawyer releases free California probate book and DVD

Fri, 03 Apr 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.

Foreclosure and probate in California

Tue, 31 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.

Choosing your California probate lawyer

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.

San Diego probate lawyer releases free California probate book and DVD

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

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

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?

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

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

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 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.

Where is the San Bernardino County Probate Court?

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

The house is getting sold during the will contest

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 happened 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.

Selling a home in probate during a declining real estate market

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 newspaper 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/z82ae2726b0f49f7a882574790075
c6b6.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 estate 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.

Preserving a probate inheritance for a disabled child

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.

Where is the Riverside County Probate Court?

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 means 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.

Singer Etta James Dies at 73; $1 Million Estate Possibly in Probate

Sat, 04 Feb 2012 08:00:00 EST

The legendary rhythm and blues singer Etta James died Friday, January 20^th from complications related to leukemia at Riverside Community Hospital in Riverside, California. She was 73.

James died in the company of her husband and two sons at about 8:00 AM Friday morning.

Her sons Donto and Sametto James had been in and out of court throughout 2011 in a dispute with their stepfather Artis Mills over conservatorship of her $1 million dollar estate. Her sons wanted her to receive hospital care, while her husband wanted to continue care with a private doctor at her Riverside home.

In December, Riverside County Superior Court Judge Thomas H. Cahraman ruled that James’ husband would maintain control of her finances and administer any necessary funds for her care. He also ruled that James would continue to receive treatment at home. However, Mills only received $350,000 of the $500,000 he had originally requested to cover her anticipated medical expenses.

News of her terminal leukemia diagnosis broke in December, but court records in the probate case show that she also suffered from kidney failure and dementia.

James returned to the hospital before Christmas when she experienced difficulty breathing but was released when her condition stabilized in early January. It is not known when she was readmitted to Riverside Community.

Though the conservatorship case was settled just weeks before her passing, the final distribution of her estate seems unclear, and it may need to undergo probate.

Etta James is survived by her husband of 42 years, her two sons, and seven grandchildren.

The California trust lawyers at The Grossman Law Firm offer our deepest condolences to the family and loved ones of Etta James.

New 2012 Legislation AB 1305 Impacts California Probate

Tue, 17 Jan 2012 08:00:00 EST

This January 1^st, fewer estates will need to go through the California probate court system because of new legislation AB 1305.

Signed into law by Governor Brown this July, AB 1305 increases the minimum value needed for court assisted probate to $150,000, which is $50,000 more than the previous threshold. The minimum value for physical property, including houses, land, and timeshares, has been more than doubled - from $20,000 to $50,000.

Previously, in cases where a deceased individual’s estate was relatively small, a great deal of the inheritance could get caught up in the fees and potential litigation expenses involved in trust litigation. This law will help save families a great deal of heartache in the wake of a loved one’s death.

Even if you know your estate will not exceed the new limits, thorough and explicit estate planning is crucial for your beneficiaries. For the sake of your loved ones, consider making an appointment today with an attorney experienced in estate planning and distribution.

If you need to sort through will, trust, or probate issues or want to best protect the interests of the loved ones who will be inheriting your estate, the California trust lawyers with The Grossman Law Firm might be able to help. We serve San Diego and outlying areas with estate planning, will contests, and trust litigation services as well as probate and trust administration. Talk to us toll-free at 888-443-6590, or use our quick online contact form to schedule a no-cost consultation today.

Also, be sure to order a copy of Scott Grossman’s must-read FREE book The Insider’s Guide to California Probate and Trust Administration.

Estate Planning and Incapacitating Chronic Illness in California

Wed, 16 Nov 2011 08:00:00 EST

If everyone understands that estate planning is necessary, then it seems strange that very few actually do something about it. According to a NAECP Education Foundation news release, "it is estimated that 120 million Americans do not have up-to-date estate plans to protect themselves and their families in the event of sickness, accidents or untimely death." Other surveys came to roughly the same conclusion, which has raised concerns because of the increased incidence of incapacitating illnesses like Alzheimer's disease, Parkinson's disease, COPD, and multiple sclerosis.

In 2007, lawmakers of the US House of Representatives instituted a National Estate Planning Awareness Week, organized this year from October 17th to 23rd. Free webinars and conferences were organized by practitioners across the country to make the general population more conscious of the great importance of planning the transfer of their assets. Such planning includes:

The designation of a person to handle financial issues
The designation of someone to make health care decisions and have access to medical records
A living will to establish health care wishes
The creation of a will to handle the transfer of the estate
The appointment of someone to manage assets during a period of illness or disability and to update the will when necessary

We join our voice to the call and ask you to contact us for a free discussion of your estate-planning project.

The Search for a Missing Beneficiary of a California Probated Estate

Wed, 09 Nov 2011 08:00:00 EST

Years may pass between the moment a will has been created and the creator's death. In the meantime, much information may have been lost due to neglect or a lack of communication. The decedent's heirs and beneficiaries, when informed of the will's instructions, may be surprised to hear the name of a beneficiary no one has heard about in decades and who may be hard to trace.

After the most obvious search has produced no results, the executor may be at a loss: how much time and money should be dedicated to a further search effort? Who can help, and what should be done if the beneficiary remains "missing?"

The first thing the executor might do is to prepare and send a Declaration of Due Diligence to inform the court what has been done to locate the missing person. This declaration should state the person's name, gender, approximate age, last known address, and approximate date when the person was known to live there. The process of due diligence requires the executor to look at the obvious sources of information, such as relatives, friends, employers, telephone directories, and the internet. Additional information should be collected from the assessor's office in the county of the person's last known residence.

Based on this declaration, the court will decide whether the executor has done his duty to find the person or may instruct him or her to take further steps.

California Raises Limit For Small Estates Procedure to $150,000

Wed, 02 Nov 2011 08:00:00 EST

The Small Estates procedure of the California probate code allows the distribution of the decedent's estate without formal probate if the value of the estate is limited. Several changes have been introduced that will become effective on January 1st, 2012:

Heirs and beneficiaries can collect the decedent's property without formal probate proceedings if the gross value of the estate does not exceed $150,000. This limit is currently set at $100,000. The transfer can be done either by a simplified probate procedure or by an affidavit (sworn statement).
The limit for transferring real property through a simple affidavit filed in superior court, currently set at $20,000, has been raised to $50,000.
A surviving spouse or domestic partner will be able to use an affidavit to collect salary owed to the deceased spouse to a maximum amount of $15,000, which is up from the current limit of $5,000.

Under the Small Estates procedure, there are no special rules to notify potential creditors, and the entire transfer process can be completed in a few weeks. The above mentioned limits can be misleading because many assets are not included in the calculation of the estate's value, such as real estate outside California, joint tenancy property, and other assets that are exempt from California probate.

The Simplified Procedure to Transfer Estates in California

Tue, 01 Nov 2011 08:00:00 EST

In a separate post, we broke the news that the State of California has raised the limits under the Small Estates simplified transfer procedure. Effective January 1st, 2012, the current level of $100,000 will change to $150,000. It is also worth considering that the limits only concern property that needs to be probated, not the various assets that escape the California probate process altogether.

How Does the Small Estates Procedure Work?

The summary procedure is available for personal or real property, provided:

There have not been any administration proceedings for the decedent's estate.
If there have been, then the personal representative of the estate has agreed in writing to the simplified procedure.
The gross value of the real and personal property owned in California by the decedent does not exceed $100,000 ($150,000 as from 01/01/2012).

Note that "gross value" means that one cannot deduct the value owed by the estate to creditors.

The simplified transfer procedure does not require any published notice or special rules to notify creditors, and the original will does not have to be filed with the court.

There are two different procedures:

One for personal property (jewelry, furniture, clothes...), with a waiting period of 40 days. The transfer requires a simple affidavit (sworn statement).
One for real property (not exceeding $20,000, increased to $50,000 as from 01/01/2012), with a waiting period of 6 months. The transfer requires an affidavit filed with probate court.

The waiting period starts as from the date of death, and gives creditors time to make their claim against the estate known.

What Does A California Transfer Agent Do?

Mon, 24 Oct 2011 08:00:00 EST

In California, the transfer agent (referred to in separate articles on the transfer of securities), are regulated by the federal government, more particularly the US Securities and Exchange Commission. For the estate's personal representative (its administrator or executor), it is important to quickly find out who the transfer agent is for the bonds, stocks, and debentures owned by the decedent.

Transfer agents perform three different tasks:

They keep track of who owns a company's stocks and bonds and how these securities are held, as well as the number of shares or bonds owned. They issue and cancel certificates to account for a change in ownership.
They serve as the company's agent to pay interest, cash, or stock dividends or to distribute bonds and stocks to investors. They will also act as proxy, exchange, tender, and mailing agent in the various stock and bond operations of the company.
They help shareholders and bondholders when certificates have been lost, stolen, or destroyed. When an investor wants to sell certificates, the transfer agent will usually ask for a guaranteed signature before the transaction can proceed.

The estate's representative will usually find the name of the transfer agent of a company's certificates on that company's website or on the "Search the TA Database" page of the Securities Transfer Association.

A Durable Power of Attorney Can Make All the Difference in California

Fri, 14 Oct 2011 08:00:00 EST

One of the sad truths about estate planning and probate matters in California is that people who have the foresight to write a will and plan for the distribution of their assets after their death do this when they are in full possession of their mental capacities, but then die a great many years later when they have become impaired by sickness or old age.

The elapsed time will often have taken its toll, and the author of the will may have become unable to make the necessary changes to his or her will and administer the estate appropriately.

By preparing a document called a Durable Financial Power of Attorney, a person can give someone else full legal authority to administer the estate on his or her behalf should he or she become incapacitated.

The adjective "financial" distinguishes this power of attorney from a similar document that may be drafted with the purpose of giving someone the right to make health care decisions on behalf of the grantor.

If the durable financial power of attorney is a part of a will, the will's author should avoid keeping the will secret; the power of attorney would defeat its purpose because the appointed person won't even know he or she was given full legal rights to administer the estate when its owner becomes incapacitated.

When Is the California Decedent's Income Tax Return "Fiduciary?"

Sat, 08 Oct 2011 08:00:00 EST

The state and federal governments may feel some compassion for the loss of your loved one, but it will not extend to waiving the taxes due. Income earned in California on assets in the decedent's estate after his or her death is taxable just like the income of any individual. That is, if the yearly income exceeds a gross income of $600 for federal tax purposes and a gross income of $10,000 for California purposes.

Tax returns are called "fiduciary" if the estate goes through a California probate process that is likely to take an entire year or more. The executor or administrator of the estate must be able to declare income received on the assets during the probate proceedings until these assets have been distributed. If real property and securities are sold during probate, a capital gains tax may be due.

When are fiduciary returns due?

This depends on when the taxable year starts. It may be a fiscal year determined by the accountant, executor, or administrator, or a calendar year. Fiduciary returns need to be filed no later than the fourth month after the end of the taxable year.

What happens if probate is not necessary?

In the event that the estate can be distributed without probate, the process is likely to be executed over a short period of time, and fiduciary returns will not normally be necessary. The income generated by the estate will become taxable on the personal returns of the beneficiaries.

The Abstract Nature of Intangible Personal Property

Thu, 06 Oct 2011 08:00:00 EST

If you own jewelry, you can appraise, sell, or give it with great ease. Some types of property, however, are not as easy to grasp and evaluate, and they bring their own complexities due to their abstract nature. They are called intangible property and represent a right to be paid money or to legally exercise some sort of power, usually under the form of a document stating the nature of the right.

Examples of intangible property under California law
Intangible property comes in many forms, such as:

Promissory notes and bank passbooks
Court judgments giving a right to receive compensation
Mortgages
Deeds of trust establishing an interest in property as security for a debt
Stock or bond certificates giving an ownership interest in a corporation
Mutual and money market fund certificates
Copyrights, patents, and trademarks
Contracts giving a right to future income, such as royalties

Intangible property can easily be located in any state, but the transfer of such property can be done under the laws and procedures of the state in which the owner resides. This means that a California owner of fund certificates issued in Illinois can transfer his or her property to California without much hassle.

How Do You Define Real Estate in California?

Sat, 01 Oct 2011 08:00:00 EST

Is a mobile home real estate? Is a life interest in a condominium considered real property? What about an oil or gas leasehold interest?

Under California probate laws, it is important to establish which part of the estate is considered real estate or "real property." Real property is land and things permanently attached to land, such as houses, trees, and crops.

If a mobile home is registered with the DMV and can be taken from one place to another, it is considered personal property, not real property. If it is permanently attached to a certain piece of land, though, it becomes real estate.
A condominium, a leasehold interest in cooperatives, underground utility installations, or oil and gas are also considered real property.

A real estate lease with an unexpired term of ten years or longer or a lease with an option to purchase falls in the same category. However, life interests in condominiums and co-ops which do not survive the decedent are more likely to be treated as personal property.

How is real property transferred?

The transfer of real estate from one person to another is done by a document, usually a deed. To find out if a document is a deed, you need to see if it contains:

The name of the grantee (the purchaser)
The name of the grantor (the seller)
A legal description of the property
A granting clause, usually starting with:"I hereby grant..."
The signature of the grantor and grantee.

There are several kinds of deeds, the most common being the Grant Deed, the Quitclaim Deed, the Joint Tenancy Grant Deed, and the Trust Deed.

Separate or Concurrent Property: Not Always a Black-and-White Situation

Fri, 23 Sep 2011 08:00:00 EST

Life loves chaos, and it does not often reflect the neat, orderly, and clear-cut situations best defined in theories and basic rules and regulations. This is why the basic rules and regulations tend to grow a wide array of provisions dealing with special cases.

The California probate rules regarding the distinction between community and separate ownership of property are a case in point. The general rule is that the separate or community nature of property is determined by its source. This nature, however, can be changed by the actions of the spouses or domestic partners. These actions are more likely to result in separate property becoming community than the reverse, even if both types occur rather frequently.

Comingling Assets
The change of the physical form of property does not change its character. If a husband uses a savings account he had before marrying to buy stocks and bonds, which are later sold to buy a house, then the house remains the husband's separate property.

Many couples change the separate or community nature of property without being aware of it, and "comingling" is one they do it. If separate property assets are mixed together with community funds to such extent that it is impossible to trace them to their source, then these assets become "comingled."

Tracing the source of comingled property is a complicated subject, and the advice of an experienced California probate lawyer will best be sought.

In other cases, the partners or spouses deliberately change the nature of property by mutual agreement. Since January 1985, such a change (or transmutation) of property from community to separate or vice-versa must be made in writing and signed by the person whose property is adversely affected. Finally, some types of property, like insurance proceeds, improvements to property, pensions, or the value of a business may see their nature change over time without a clear outline of which spouse or partner contributed what to the final value of the property.

Accidental or Intentional? The Forgotten Children

Mon, 12 Sep 2011 08:00:00 EST

Having found the decedent's will, the executor may be faced with a problem: the decedent failed to provide for one, several, or all of his or her children. Several cases should be considered to illustrate how the California probate law deals with such situation.

If at the time of writing a will, the decedent was unaware of the birth of a child or was under the mistaken belief that a child was dead, the omitted child is entitled to a share in the estate that is equal to what the child would have received had the decedent died without leaving a will, i.e. according to the rules of intestate probate. If neither of these situations can be demonstrated, the law assumes that the omission was intentional, barring the child from any rights to the estate.
In the case of children born or adopted after the will was made, the omitted child will receive a share in the estate equal to what he or she would have received if there had been no will, unless:
- It appears, reading the Will, that the omission was intentional.
- The decedent had one or more children when the will was written, and left substantially all the estate to the other parent of the omitted child.
- The decedent provided for the omitted child transferring property outside the will, such as gifts during the decedent's lifetime, life insurance, joint accounts, etc. It should then be evidenced that it was the decedent's intention to make these transfers in lieu of a will provision, or showing statements of the decedent (oral or written) or demonstrated by the amount of the transfer or other evidence.

If you face a situation involving omitted children, it may be prudent to consult with an experienced California probate lawyer like Scott Grossman, especially if the situation cannot be resolved within the family.

Explaining Quasi-Community Property

Sat, 03 Sep 2011 08:00:00 EST

Californians come from everywhere. With the economic and immigration boom of the last 60 years, many couples have moved to California after entering into marriage or domestic partnership. What happens to property the couple acquired before they became California residents?

In order to deal with such a situation, the term quasi-community property was coined to include all real property situated in California and all personal property, wherever located, that would have been considered community property had the owner been a California resident at the time of the purchase.

Some other states do not have a community property law like California does. If domestic partners or spouses have purchased property, considered separate in such a state but considered community in California, the property will be labeled quasi-community property after they move to California. On the other hand, property considered community in certain states and separate in California will be treated as community property after the couple moves to California. This could be the case, for instance, for income from separate property that is considered community in certain states, while California considers it as separate. When the couple moves to California, the law will not change the statute of this property; it will remain community property.

Real estate purchased when the couple was not residing in California, and located outside California, will not be considered quasi-community property.

Quasi-community property will be treated the same way as community property if the person who dies is a resident of California at the time of his or her death.

What Community Property Is ...and Is Not

Thu, 01 Sep 2011 08:00:00 EST

Most people enter marriage or domestic partnership with their earnings and some assets, then spend decades buying and selling, giving and receiving property, and earning and spending money without much thought about who owns, is due, and owes what. California's very specific community property laws apply to property acquired during marriage or domestic partnership. Knowing what is considered community property is crucial to understanding what remains separate.

What is community property? The law says that the ownership of property accumulated during marriage or domestic partnership, including wages, other income, and property acquired with this income, is shared equally between the spouses or partners. This means each partner is entitled to 50% of property owned in community.

What is separate property? Any property owned before the marriage or domestic partnership remains the separate property of the owner, who can dispose of it as he or she wishes. The same applies to property received or inherited during the marriage or domestic partnership.

All earnings from separate property are also separate property. For instance, if a spouse inherits a townhouse after marriage, then rents from this house are also separate property.

Spouses and domestic partners may alter the character of property by changing community property to separate or vice-versa. Some assets can be partly community and partly separate property.

In some cases, there is no real need to worry about the classification of property. If the decedent did not have a spouse or domestic partner, there simply is no community property. If the decedent leaves a will transferring all of his property to his or her spouse or partner, the entire estate will go to the surviving spouse or partner.

The Important Estate Planning Move You Can't Afford To Miss

Mon, 15 Aug 2011 08:00:00 EST

In a recent SmartMoney article, the subject of designating the right beneficiaries on your accounts is once again put on the table, rightfully urging owners to move now.

It is surprising how often people fail to recognize that their lives have changed, and that the documented evidence of the rights to their estate has not. This needs to be checked, and you should do it now if you are the owner of:

Brokerage firm accounts
Bank accounts
Tax-favored retirement accounts
Company benefit plans
Life insurance policies
Annuities
529 college accounts

Do you want an example of what can go wrong?

You have accumulated $400,000 on your company savings and investment plan. When you divorced, your ex specifically waived any interest in the plan in a signed divorce agreement. This was seven years ago, and you still think that your savings are yours only and will go to the beneficiaries you choose. Think again. The savings plan document probably stipulated that the beneficiary could only be changed by submitting a form. The US Supreme Court has ruled that the outdated but undeniable mention of your ex-spouse as a beneficiary trumps the divorce agreement no matter how much you twist and turn in your grave.

The granting of part of your estate to unintended beneficiaries - caused by the failure to turn in or update your beneficiary designation forms - does not just happen in divorce cases; if you become disenchanted with one of your children, or would like to favor one that is more in need, you would have the same issue.

It shouldn't take much time to check and update your beneficiary designations on a regular basis, especially when significant life events have occurred.

Credit Card Debt May Come Back to Haunt You

Mon, 15 Aug 2011 08:00:00 EST

Don't Let Yourself Be Influenced by Credit Collectors' Calls in California

This is the message of a recent article by CreditCards.com.

Credit card debts do not automatically disappear with the owner's death. When you die, your estate is responsible for paying off the balance owed. The estate's administrator or executor will look at the assets and debts and pay the debts according to an order of priority established by law.

What if the assets don't cover the bills?

The credit card company will have to take the loss and can't legally force someone else to pay.

The critical question comes when the account was shared. If a spouse, family member, or business partner signed the card application as a co-signer, that person will be held liable for the balance on the card along with (or instead of) the estate.

However, if the second cardholder was merely an authorized user and wasn't liable to pay the bills, he or she cannot be required to pay the balance.

The Federal Credit Card Act of 2009 requires the personal representative of an estate to be informed of the outstanding balance quickly, and it prevents credit card issuers from charging fees and penalties during the time the estate is being settled.

Can you inherit debt?
In the so-called "community property states" like California, assets accumulated during marriage are considered joint property. In some cases, so are debts, but you will have to consult with your probate attorney to be sure if and how this rule applies.

Does a Spouse Inherit Anything If She Is Not Mentioned in the Will?

Mon, 08 Aug 2011 08:00:00 EST

In California probate, all possibilities have to be provided for because every situation will come up at one time or another. Let's suppose that a man makes a will and enters into marriage a few years later. He dies without having changed the will and the surviving widow isn't mentioned in his will. Does she inherit anything?

Under the California Probate Code's "statutory share," the surviving spouse will be entitled to all the community and quasi-community property. This means the decedent's half and the one-half already owned by the surviving spouse - plus up to one-half of the decedent's separate property. This is under the condition that the will doesn't provide for the surviving spouse and does not indicate an intention to exclude the spouse.

From another perspective, this rule allows the decedent, who married after having made a will, to prevent his or her spouse from inheriting under the will only under one of these conditions:

The decedent intentionally omitted the spouse by using language such as: "I intentionally omit any future husband/wife...."
The decedent provided for the spouse by property transfers outside the will instead. This could have been done in a marriage contract, through joint tenancy transfers, or insurance proceeds and should be evidenced by statements made by the decedent, by the amount of the transfer, or otherwise that it was the decedent's intention to transfer property in lieu of a will provision.
The omitted spouse made a written agreement waiving the right to share in the decedent's estate.

Small Estates Avoid Probate, but What Is a Small Estate in California?

Wed, 03 Aug 2011 08:00:00 EST

Under Probate Code Section 13100, small estates do not need to be probated in California. The limit under which an estate is considered small is $100,000.

If the small estates law exemption is used, no documents need to be filed with the county's Superior Court.

What is included and excluded from the value calculation?

Included in the calculation are all the assets held in the decedent's name, or reputed as belonging to him or her, like bank and credit union accounts, brokerage accounts, stocks and other securities, real estate, and personal property.

Excluded are assets in joint tenancy, held in trust, with named beneficiaries or payable upon death.

How is the process started?

The value of the assets is determined at the date of death. After a period of not less than 40 days, an affidavit or declaration mentioning the information described in the California Probate Code section 13101 must be signed under penalty of perjury by one or more of the heirs or beneficiaries, trustees, or fiduciaries. This document allows the institution who holds the assets to transfer them to the person who signed the affidavit or declaration.

The assets are first used to pay all outstanding debts and taxes, after which the remainder is transferred to the beneficiaries or heirs.

It is not recommended to use the small estates law if the estate is insolvent or nearly insolvent or in situations where beneficiaries and heirs do not agree on how the assets should be distributed.

What Assets Are Excluded From Probate in California?

Mon, 01 Aug 2011 08:00:00 EST

The California Probate Code does not require all of the decedent's assets to go through probate. Apart from small estates that are exempt from probate, the following assets can avoid the probate process, which will limit its cost and duration:

If all assets go to a surviving spouse: If the will gives 100% of the estate to the surviving spouse or the title to any property is held by the spouses in joint tenancy or community property with right of survivorship, then it is possible to file a spousal property petition, which is a simplified version of probate that is much faster and less costly.
Assets held in joint tenancy: If two people own property in joint tenancy and one joint tenant dies, the surviving joint tenant owns 100% of the property.
Assets held in a living trust: All the assets whose titles have been transferred to a living trust are not considered in the name of the decedent and will avoid probate. The existence of a living trust does not necessarily mean that probate is avoided if part of the decedent's estate has not been transferred to the trust by the time of his or her death.
Assets with a named beneficiary: In some cases, property held by the deceased person names one or more beneficiaries to whom ownership is transferred in case of death. This can be done for individual retirement accounts (IRAs), employer pension plans, or life insurance policies.
Assets that are payable or transferred on death to another person: The easiest way to keep money out of probate, while still enjoying it during your lifetime, is to name a "payable on death" beneficiary on your bank account.

Who Gets to Serve as an Administrator in a California Probate Proceeding?

Sun, 31 Jul 2011 08:00:00 EST

When someone dies intestate (without leaving a will) someone among the decedent's relatives will be appointed by the County's probate court. The California Probate Code provides the order of priority to claim appointment as administrator, as follows:

Surviving spouse or domestic partner
Children
Grandchildren
Other issue
Parents
Brothers and sisters
Issue of brothers and sisters
Grandparents
Issue of grandparents
Children of a predeceased spouse or domestic partner
Other issue of a predeceased spouse or domestic partner
Other next of kin
Parents of a predeceased spouse or domestic partner
Issue of parents of a predeceased spouse or domestic partner
Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person
Public administrator
Creditors
Any other person

The court may appoint one or more persons as administrator. The California Probate Code makes further provisions to establish a number of conditions to claim priority and explains what happens if there is an action for separation or divorce, if a person is under the age of majority or under guardianship or conservatorship, if a creditor claims appointment, or if more than one person has equal claim for appointment.

What Is the Role of an Executor in California Probate?

Sun, 24 Jul 2011 08:00:00 EST

An executor is in charge of winding up the decedent's earthly affairs, which essentially means protecting the decedent's property until all debts and taxes have been paid and distributing the balance to the rightful beneficiaries.

In California probate, the executor is named in the decedent's will. If there is no will, or if the will doesn't appoint an executor, the court will appoint an administrator.

Probate law does not require an executor to have particular legal or financial qualifications but does expect the highest standards of integrity, impartiality, and diligence from him or her.

Typically an executor must:

Collect the decedent's assets, have them valued, and manage them - within the limits authorized by court - until they may be distributed to inheritors
Decide on what assets to probate and those that are handed over immediately to the beneficiaries, like jointly held assets or assets with named beneficiaries
Notify all those who inherit assets according to the will and the state's laws
Fill out, sign, and file all the forms and documents required in the probate process
Handle the administration of the process, which may include terminating leases or credit cards, notifying banks, notifying mortgage and insurance companies, notifying government agencies and health care providers, re-titling property, maintaining records and accounts, and insuring assets against risks
Collect money or property due to the decedent
File tax returns and pay any taxes due
Notify creditors, examine their claims, and settle them if justified
Keep all beneficiaries informed on actions taken and the evolution of the probate
Execute all duties required by the probate process in close collaboration with the probate counsel

What Are The Advantages of Probate in California?

Wed, 20 Jul 2011 08:00:00 EST

Probate in California is a bit cumbersome, can take a long time, and is compulsory in many cases. So, one may ask, what are its advantages?

In a nutshell, we can list the advantages of the probate process as follows:

The transfer of the decedent's assets is done in an orderly, approved manner.
The heirs and beneficiaries' rights are protected by the court.
Contests and disputes regarding the evaluation and distribution of the assets are settled under court supervision.
Creditors are informed of the probate by publication and notices and have a limited period (4 months) to file a claim.

Additionally, probate allows only those entitled to take part of the estate to participate in the process. The value of non-monetary property is assessed by a referee appointed by the court.

The rights, duties, and accountability of the administrator or executor are well defined by the probate process, which prevents a personal representative from being negligent or taking advantage of his or her position. Another advantage of probate is that the referee's, attorney's, and personal representative's fees are determined by law.

The disadvantages of probate are well known: it is a long and rather complicated process. The very first and critical step in this process is the selection of the right probate lawyer. A top rated, dedicated, and experienced attorney like Scott Grossman, who operates in the Riverside, San Diego, Redlands, and Palm Springs probate courts, is crucial to a rapid and efficient handling of your probate.

Getting Older and Managing Your Estate in California

Tue, 12 Jul 2011 08:00:00 EST

Seniors older than 65 hold about $18 trillion in assets - about one third of all US net worth - according to a recent article published by CNBC.com.

"Sometimes, the senior's worst enemy is himself or herself," says a Chicago investment advisor. Poor financial decisions become more frequent with declining cognitive abilities.

Roughly half the population over the age of 80 suffers from problems with memory, language, thinking, and judgment. Dementia and Alzheimer's disease are more prevalent now than 20 years ago.

Financial advisors and probate lawyers relate numerous examples involving older clients harming their finances through ill-considered decisions. Sometimes, the problem is compounded by fraud and abuse.

Safeguards can be put in place, and you should discuss them with the entire family, following some basic guidelines:

Prepare an estate plan to manage and protect your assets while alive and control their distribution after your death. This could involve a will, a durable power of attorney and a health care power of attorney, and planning for cognitive decline.
Regular check-ups to review your portfolio, update the trustee list, verify the designated beneficiaries, update your will or trust, and adjust the family composition and the names of your advisors.
Set up a revocable living trust to establish how your assets are handled after you die and designate the trustee, taking into account that this could be a long term function.

The key notion is to recognize the inevitable. Advancing in age is inevitably linked to greater impairment, and a higher risk of dying suddenly.

California Judicial Branch Crippled By New Budget Cuts

Mon, 11 Jul 2011 08:00:00 EST

Last Tuesday, the California State Legislature approved an $86 billion state budget that includes a cut of $150 million in the judicial branch's budget, which comes on top of a $200 million budget cut approved earlier this year, a Judicial Council News Release reports.

Chief Justice Tani Cantil-Sakauye declared in a press conference: "This is an extremely challenging time for California's courts and I am committed to finding ways to minimize the effects of this devastating budget cut on both the courts and the citizens who use them every day."

The cumulative cuts that were decided in the last three years will result in individual court closures, fewer services to court users, and more potential furloughs and layoffs for employees, Cantil-Sakauye added.

The Trial Court Budget Working Group and six Administrative Presiding Justices of the Courts of Appeal will be reviewing options for implementing cost cuts in the trial and appellate courts.

Court leaders had earlier voiced their concern to lawmakers that "the public will experience longer lines and backlogs in the processing of filings and judicial orders."

On top of the above mentioned budget cuts, the judicial branch is required to loan the State General Fund $350 million from its State Court Facilities Construction Fund which will automatically delay the construction of much needed facilities.

Riverside County makes geographical changes for probate cases

Mon, 13 Dec 2010 08:00:00 EST

The Riverside Superior Court has emailed the following announcement concerning changes in where new probate cases will be assigned:

Probate
All Probate matters filed and heard at the Hemet Courthouse will be re- assigned to the Riverside Historic Courthouse, Probate Department for both filing and hearing purposes. Probate matters will be heard in departments 08 and 11.

California probate filing fees have been raised

Thu, 02 Dec 2010 08:00:00 EST

Effective November 1, 2010 filing fees for all probate matters have been raised throughout the State of California. statewide filing fees for filing a new probate have gone up by $40. In most counties this means the initial filing fee is $395. In Riverside County the initial filing fee is $410.

Hemet Probate Court To Close

Wed, 27 Oct 2010 08:00:00 EST

The had a probate court located in Hemet, California will be closing. effective January 10, 2011 all cases, we assigned to the helmet probate court will be transferred to Riverside. All Hammett probate cases will retain their designation as probate cases. After the transfer, all the cases will be heard in the Riverside probate court.

Dodger owners' divorce trial could have been a probate battle

Thu, 02 Sep 2010 08:00:00 EST

The high profile battle between Frank and Jamie McCourt for ownership of the Dodgers could easily have been a probate battle. Had either one of them died then the decedent's children would have been in probate court asserting their parent owned the team as their separate property or they owned it jointly as community property. Think that's far fetched? Think again. The number of divorces and remarriages during the last 30 years has lead to a large number of blended families.

Often times the couple hasn't paid close attention to how they have taken, or changed, title to the property they own. When that happens hard feelings can arise when one of the spouses dies. So often the survivor claims it was community property so half of it is theirs while the children of the decedent claim it was their parent's separate property so the survivor gets nothing.

Couples with larger estates may have signed deeds changing the character of their real estate or beneficiary designations affecting IRAs and other deferred compensation plans. Sorting it out after death is just as complicated as doing divorce while they are both alive.

Seniors duped into buying living trusts

Sun, 25 Jul 2010 08:00:00 EST

Senior citizens in Washington State who were duped and/or pressured into buying living trusts are getting a refund. This story shows how unscrupulous insurance agents used the information collected from preparing the living trusts to sell other financial products to their customers. Of course, the insurance agents were not attorneys.

Living trusts are useful estate planning tools for many people. But, not everyone needs one and no one should get a "cookie cutter" document because it is unlikely to meet their needs. Getting a a trust that isn't personalized may result in unintended consequences and a battle in the probate court.

Probate rules vary greatly from state to state

Mon, 05 Jul 2010 08:00:00 EST

This question and answer column in the Houston Chronicle really illustrates the importance of getting a local attorney for your probate case. The attorney who writes this column is a certified specialist with the Texas Board of Legal Specialization. I've never met him but assume he is well qualified to answer questions about Texas probate cases.

His response to the first questions concerns the mechanics of probate in Texas. Apparently, there are unsupervised probates in Texas. He warns the reader to hire an attorney to guard her children's interest in the estate because they won't know what is happening in the probate otherwise.

This is quite different from California probate cases. All California probate cases go through probate court and require notice to all the beneficiaries. There is an affidavit procedure in Calfornia for small estates without real property that does not go to court but that is the only exception.

Don't be lulled into a false sense of security because a California probate goes to court. If you think something is wrong you can't rely on the judge to catch and correct the problem. I've lots of people over the years who have contacted my firm after the probate was closed to complain about something that happened. The entire purpose of giving notice to beneficiaries in a California probate is to give them the opportunity to come into court and object to anything that's wrong. Failing to object means you have waived your right to do so. If something is wrong then act now. You won't get a second chance.

Probate litigation no stranger to gay couples

Sun, 25 Apr 2010 08:00:00 EST

This case from the Milwaukee area is a typical case of one gay partner's parents being unhappy with his will and challenging it. The decedent ran a successful design company with his life partner. His will left everything his partner when he died.

Unfortunately, his death came unexpectedly in an airplane crash. For reasons not stated in the article, his parents did not accept his testimonial instruction and filed a will contest. They claimed their son would care for them for the rest of their lives even though his will left everything to his partner. They lost and have taken an appeal.

The brief facts of the case illustrate the power of a will and the difficulty of overcoming it. The parents appear to be asserting their son made oral promises that don't appear in his will. If that is their entire claim it would not win in a California probate court.

Estate tax repeal means some spouses are disinherited

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

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

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

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

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.

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

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

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

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

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.

Conflicting wills leads to charge of undue influence

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.

Riverside County probate courts ending cross-filing

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.

Changes to will leads to criminal elder abuse case

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 inheritance intended for them.

Estate planning for blended families

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

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

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

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.

Palm Springs probate lawyer releases free California probate book and DVD

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.

New York Times article makes common estate planning mistake

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.

Helmsley's pet trust was poorly drafted

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

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

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

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

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

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

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

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

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.

Delayed probate accounts were a sign of trouble

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.

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

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.

Scam artists appear to be active in Nigerian probate court

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.

Probate estate sues for retirement plan assets and loses

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 goes 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.

Estate planning to benefit church

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

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 civil 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.)

Unethical tactics to collect debt from probate estate

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

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

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

Thu, 05 Feb 2009 08:00:00 EST

Go here for the whole story.