Ok, I admit it I just wanted to put “Game of Thrones” in my blog to see a spike in readership. I am sorry. It’s like the old days when we talked about Star Wars. Here’s the strange thing though, and this has absolutely nothing to do with California probate law, I have never watched GOT. I do not even know what it’s about. Strange I know. I wake up Monday morning, go to the gym, scan Facebook, and wonder what everybody is talking about. Am I the only person in the world who doesn’t watch GOT?

Well, anyway, once I get my GOT feelings over with I move on to California probate law. Perhaps since I have never since GOT I find California probate law more interesting and exciting. I am constantly reading blogs, articles, and legal papers about the latest California probate laws. However, more importantly I am constantly refining and improving my systems. I want my California probate law procedures and systems to be the most accurate and efficient of any attorney in the state.

I do not know anybody that works like we do in my office. If you contact me by about 3:00 most days of the week I can email initial probate documents to you, THAT SAME DAY, for you to print, sign and return. I will even include a FedEx return label for simplicity on your end. In many cases we can be on file within 24 hours and, for some courts, we can be on file the same day as they allow e-filing of most documents. No other lawyer I have heard of operates like this.

My feeling is most people want to get probate over with and move on with life. The quicker we file the quicker we finish.

So again, my apologies, that I know nothing about Game of Thrones, but any time you have a death in the family contact me and let’s get your probate case started ASAP!

-John Palley

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I saw this headline today and here’s a link to the article in Aretha’s hometown paper. The reality is it’s not shocking to have three wills and even three handwritten wills. This happens as people change their mind from time to time and/or in some cases handwritten documents might be wills. For a lawyer helping his client carry out their fiduciary duty it’s best to file all potential “wills” with the court and then let the Judge sort out what’s a will and what’s not a will.

Let’s back up a little. In California a handwritten will is valid as a “holographic will” if it’s:
1) written by the decedent in their own writing;
2) signed by the decedent;
3) dated or the timing can be established by content of the will.

Notice in California a holographic will does not require any witnesses. Certainly having two witnesses probably helps but it is simply not required.

Why do so many celebrities not have proper wills and trusts in place? I don’t know “the” answer but I suspect they are too busy making money, traveling from house to house, being tugged at from all types of hanger-oners, and the like. They don’t have as much free time as you and me. Obviously they should have a will and a trust and probably several trusts but it seems to be so common that they do not.

Let’s go back to Ms Franklin. So there are three purported wills of hers. I have not seen any of them and have no clue about anything specific to her case. I can give some thoughts from other cases I have seen. These are wild guesses on my part but I make them by reading the facts. For example, why wouldn’t she throw away the old wills? The best way to revoke an old will is to rip it up and throw it away. If it’s gone there is no doubt of your intent. Or write “REVOKE” across the face and keep it. That’s another clear showing of intent. Let’s talk about Ms. Franklin’s wills….

I will bet a cup of coffee that there will be allegations that one, or more, of the wills is not in Ms. Franklin’s handwriting. Will this be true? Heck, who knows. People’s writing often changes a little bit and, in particular, when people are old and/or sick their writing can look different. For example, people with Parkinsons start to write very small. So my guess is there will be some allegations that the last will is not in her handwriting.

Perhaps each will gives away certain assets. I have seen many times where handwritten, or other homemade, wills do not give away all property. So for example will #1 might say “I give my Detroit house to the Detroit Symphony.” Will #2 might say “I give my Detroit house to my friend Bobby.” Will #3 might say I give my Los Angeles house to my friend Debbie. So it’s possible will #2 will trump #1 as to Detroit and will #3 will give away the LA house.

Or maybe there is ambiguity. Maybe will #2 says “I give my Detroit house to my friend Bobby to live in since he loves it so much.” Ok, so does that mean Bobby essentially has a life estate in the Detroit house? Then does it go to the symphony when Bobby dies? What about the other assets? If the will doesn’t specify then the “residue” would go Ms. Franklin’s next of kin.

I could go on making up guesses but, as I said, I do not know.

I should add if Ms. Franklin really did have a house in LA she will need to hire a California attorney to do an ancillary probate. I perform ancillary probates throughout California as often people have property or homes in California. Maybe they inherited a home, had a beach home, had a timeshare, had desert land, etc… but they lived elsewhere at death. I handle ancillary probates in all counties in California.

If you have a death of a loved one, or maybe a hated one, in California let’s talk.

-John Palley

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I got my court’s calendar notes today for my recently filed Heggstad petition where the decedent had done a Suze Orman trust. Different counties call them different things – calendar notes, tentative ruling, etc… but basically it’s the Court’s preliminary thoughts on the case after reviewing what has been filed. It says:

Settlor executed a pour-over will, property is specifically distributed in trust.
No general transfer or assignment/property is titled in decedent’s name.
For court review.

Now what does this mean?

Settlor, the decedent in this case, executed a pour over will as she should have done and she mentioned the property specifically in the trust as a gift. Those are both good. For that Suze gets an A!

No general transfer or assignment means that Suze apparently did not prepare a general transfer or other generic written statement of intent. Court’s in California like having that back up document, even though it’s generic and general, that says something like “I intend for all assets to be in my trust and do hereby transfer them into my trust… and also any future assets….”  I am paraphrasing here but that’s the basics of it. The courts like to see this in a separate document rather than a sentence in a trust. As far as I know Suze did not prepare such a document in this case or maybe it was lost!?

Then the dreaded words, “for court review.”  This means the file examiner (in this case a licensed attorney who works for the court) has reviewed the file and can not say, without exception, that the matter should be approved. Perhaps if Suze had prepare a general transfer document the probate notes would say “RFA” (or “Recommended for approval”) which is what you want it to say.

To be clear I am not blaming Suze or even singling Suze out as maybe she did prepare a general transfer and the decedent lost it!? Or maybe she just doesn’t prepare those with her estate plans!? I do not see a reference to it when I tried googling general transfer with Suze’s name so it doesn’t look good. Also remember that a lot of attorneys, for some unknown reason, do not prepare general transfers with their estate plans. Or maybe the decedent lost the general transfer document!?

Also, so it’s clear I do not do estate planning so am not trying to get your business. Go to Suze, go to another attorney, go to Legalzoom if you want. I am just saying MAKE SURE YOU GET A GENERAL TRANSFER DOCUMENT WITH YOUR CALIFORNIA LIVING TRUST PACKAGE!

Until next time I remain THE California Probate Attorney!

-John Palley

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As a probate attorney for 25 years I have dealt with countless ancillary probates in my personal practice. These typically involve a person who has property in two, or more, US states. However, on occasion we run into international probate situations. That might be a citizen of the world who dies owning property in California or a California resident who dies owning property around the world somewhere.

As background California Probate Code section 12501 defines ancillary as: “Ancillary administration” means proceedings in this state for administration of the estate of a nondomiciliary decedent.” So this could mean someone living around the US or around the world that leaves property in California.

I recently became acquainted with an international law firm that focuses on these situations and takes great pride in their work. Should you have a multi-national probate situation I encourage you to reach out to Graf Partners. They also have some great blog posts in their blog here.

Should you have an international probate that touches California please reach out to me as I handle all types of probate cases in all counties of California.

-John

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Today is Monday February 25, 2019. We had a probate hearing on calendar in a county in California. I am not trying to throw any specific Court under the bus so let’s just say a county somewhere south of Oregon and north of the Mexican border. We had taken over the probate from another attorney who didn’t do probate work and they had failed to file the proof of service of notice. Anyway, the new court date is July 1, 2019. A little OVER FOUR MONTHS from now. We asked for a date 3 weeks or more out as we just need 15 days but the Judge said the court had lost some file examiners and thus couldn’t set anything sooner. I am almost speechless! We may have to go in on an ex parte basis for letters of special administration and we will talk with our client about this. Of course, the irony would be that would take more judicial resources to deal with. Get it right the first time. Hire the right attorney at the beginning. We took over for the other attorney or would have been done right the first time. This is an example of something we do within days of filing your probate so that you don’t get continuances for something so simple. Hire the best from the start and avoid CRAZY long continuances in probate court. -John

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Dealing with well over 1,000 probate cases in my 25 years as a probate attorney I have been asked “Can I change the locks on [mom/dad/grandma/grandpa/etc] house now that they are dead?” The stories are different, and though often unlawfully, there are people in living in mom’s house. This may be a squatter, this may be a tenant, this may be a relative, this may be a caretaker. It may be someone who was “taking care” of mom and it may just be a neighborhood homeless person. They seem to often be drug addicts or so I am told. The fact is they are living in your mom’s house and you know it’s not right that they are there. On top of that these horrible people are usually doing bad things to your mom’s house.

Here’s the thing, and I need you to take a deep breath as you read this, these people likely have legal rights and you likely can not just change the locks… and you most certainly can not physically remove them from the house. I know it’s horrible and I get it that it is not right. However, they likely have rights. A tenant, mom’s caretaker, your brother, a squatter, a homeless person, and the list goes on. They all might have rights to some degree.

My general rule of thumb is do not just change the locks and, as I said above, do not forcefully eject them from the house.

If the person is truly a homeless person who has broken into the house then call the local police or sheriff to assist you. Do not take action on your own. I have not checked recently but a squatter does achieve rights, in California, after a very few days living there. Thus a homeless person who has broken into the house should be dealt with more quickly than say your brother who has been living with mom for five years. They are different situations entirely.

The problem with changing the locks improperly is YOU could be sued by this horrible person who is living in and likely destroying mom’s house. I know it’s not right but I am telling you the truth. YOU COULD BE SUED FOR CHANGING THE LOCKS.

I always recommend hiring a landlord-tenant attorney ASAP in these situations as they can help you understand your legal options. I handle the probate side of things.

One way the probate is important is we can go to Court and get Letters of Special Administration that give you the legal authority to evict the people. You need this legal authority to bring a lawsuit. Otherwise you don’t have authority.

Whatever you do this area of law is ripe with protections for “tenants” so you need to be careful. You need to be careful with people who are tenants and you need to be careful to not let squatters become “tenants.” An experienced landlord-tenant or real estate attorney can help you.

Good luck. -John

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I spoke recently to a potential new client who lives in the great state of Texas. Her daughter died here in California, with assets exceeding $150,000, and thus she needs to start a probate. This is the type of case I specialize in. I deal with dozens of such cases each year where my client lives somewhere outside of California but they lost a loved one here in the golden state.

I explained that I would need the original will to file in the probate court. The potential client got very defensive and asked if we could do the probate without the original will. I explained that California law requires filing the original will in the probate court. However, if a will is lost we can file a petition for admittance of a lost will. I assured her I do this all the time.

I explained that I would send her an email with the initial probate documents and a FedEx return label. I explained that she would print, sign and return those documents along with the original will. She was very concerned and said she would not do that but instead would fly the original out here. I told her that was fine but really unnecessary as I have client’s FedEx the original will to me all the time. I assured her there would be tracking on the package so she would know where the package was the whole time it was in route. I further explained that if the will somehow got lost in transit we could then change our petition to the admission of a lost will.

She told me she would have to think about it.

Some things are just THE LAW. I do not make the law. My job is to interpret the law, explain to my clients what the law is, and help my clients to follow the law during a California probate. Filing, or “lodging,” the original will is part of the process – a necessary and required part.

I applaud this potential client for being so careful withe original will but the reality is there is some level of risk in life that we all have to accept. In my opinion shipping documents via FedEx, with tracking, is a pretty safe way of sending documents. I have done over 1,000 probates and while not all of them involved sending wills from other parts of the country to me, many have been that.

I should add she asked me if the initial documents would be ready in a week or two. I said, “no, the initial documents would be ready today or tomorrow” and it was about 1:30 in the afternoon when I said that. I pride myself on being highly efficient! Try us out and see how efficient we are!

If you need help with a California probate we handle cases in every county of the state!

-John

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As a probate attorney since 1994 I have prepared and file a lot of Spousal Property Petitions over the years. The main form is state form DE-121 which you can find here on the web. I think a lot of people gloss over the many nuances in these cases and thus I wanted to talk about things that can come up in these cases. I say this because I think a lot of people have the misunderstanding that since their spouse died they get all the assets. This is not always the case and I will highlight this issue below. So here are some random thoughts on Spousal Property Petitions in California Probate Courts.

WHAT DO YOU CHECK IN PARAGRAPH 1 of DE-121:

First of all though the main form is a state wide Judicial Council form the form is anything but easy. The toughest issue starts at paragraph 1. It says the Petitioner (often the surviving spouse) requests:
a) determination of property passing to the surviving spouse or surviving registered domestic partner without administration.
b) confirmation of property belonging to the surviving spouse or surviving registered domestic partner.

What does these two things mean? What’s the difference? Do you check a, check b, check both boxes, or what? Well, it depends! You need to look at the facts of the case. If there is an argument for community property then you probably want to check both boxes. Later in the petition (paragraph 7) you can explain which assets apply to a and which apply to b.

A common situation is a house purchased during marriage in one spouse’s name. This is often done for financing reasons as one spouse often has better credit. So the house is purchased in that spouse’s name, they fail to ever add the other spouse and then of course the spouse whose name is on the deed dies. You need to look at a few things in this hypothetical:
1) what was the source of the down payment money (from before marriage, was it a gift during marriage or was it from job during marriage);
2) what was the source of the mortgage payments (same as above);
3) is there a written agreement about who owns the house?

All of these are important because typically when a house is financed during marriage the spouse whose name is not on the deed will sign a spousal or quitclaim deed to the other spouse as “their sole and separate property.” So in the common hypothetical the surviving spouse has signed off on the deed. This can be a problem but is certainly not a catastrophe at death. The answers to the above questions still matter.

DOES IT MATTER IF THERE IS A WILL IN A SPOUSAL PROPERTY PETITION CASE:

Having a will, which gives the assets to the surviving spouse, will greatly help a spousal property petition and increase the likelihood of success significantly. That is because you don’t have to prove an asset is community property which can often be difficult if not impossible. It is very important for spouse’s to have wills even if it seems obvious and simple that everything should go to the surviving spouse. I should add the will should be legally valid. The main options for a will are: 1) a document typed or written in someone else’s hand that is signed, dated and has two disinterested witnesses; or 2) a holographic will which is a document written by the decedent in their handwriting, signed and dated by them. Wills are very important in SPP cases. Yes, trusts are better as they avoid an SPP but a will is the next best thing.

WHAT OTHER DOCUMENTS ARE NEEDED BESIDES DE-121:

The use of DE-121 is pretty standard. However, what else is needed? Some counties, like Orange County, for example have mandatory like forms or declarations that must be provided. I am going to paste all of local Rule 607.10 but in particular look at the list of questions you must answer. The answers to those questions help determine if community or separate property is involved. I have developed this into a standard form that I use in most of my spousal property petition cases even in other counties beside Orange. I do this because it answers a ton of questions that the Judge or probate court attorney or probate court File Examiner are likely to have.

Rule 607.10 Spousal Property Petitions (Probate Code Sections 13650-13660)
A petition containing an allegation that the character of any property was transmuted
after December 31, 1984, by decedent and surviving spouse must be based on a writing (Family
Code section 852). A photocopy of the writing showing signatures must be attached to the
petition.
If a petition contains an allegation that the character of any property was transmuted
before January 1, 1985, by decedent and surviving spouse, such claim may be proved either by a
writing or by other supporting facts which must be set forth in the petition.
A petition must list, on separate schedules, the decedent’s interest and the surviving
spouse’s interest in the property. For example, if it is alleged the decedent and surviving spouse
owned as community property a piece of real property, the decedent’s undivided one-half (1/2)
interest in such property should be listed on one schedule and the surviving spouse’s undivided
one-half (1/2) interest in the same property listed on another schedule.
The following requirements do not apply to a petition if the entire estate of the decedent
passes to the surviving spouse either under a will or pursuant to interstate succession and one of
the following applies: (a) the petition only seeks determination of the passing of the property
without a finding of the character (community or separate) of the property; or (b) the decedent
and surviving spouse executed a written agreement transmuting or confirming all property
owned at the date of the agreement and all after-acquired property into community property; or
(c) the decedent and surviving spouse executed a written agreement which transmuted or
confirmed the subject property to community property and the date of acquisition of the subject
property is alleged. If (b) and/or (c) apply, copies of all agreements must be attached to the
petition. In all other cases, the petition must be supplemented to include the following
allegations:
A. Date and place of marriage; and domicile at the time of marriage;
B. Dates decedent and a surviving spouse came to California, if not domiciled in
California at time of marriage or resided in another state after marriage;
C. If decedent owned any real or personal property on the date of marriage, a
description of such property and the approximate value;
D. Decedent’s occupation and net worth at the time of marriage;
E. Whether or not the decedent received any property after the date of marriage by
gift, bequest, devise, descent, proceeds of life insurance or joint tenancy
survivorship and, if so, a description of such property, giving approximate values
and dates of receipt;
F. If any property was received by decedent under E above and is part of the estate,
identify the property;
G. The exact title vesting as of the decedent’s date of death for each item of property
and a statement whether it was acquired after December 31, 1984;
H. If claims are based on any document, attach a photocopy of the document
showing signatures; and
I. In addition to the above, set forth any additional facts upon which claim of
character of property is based.
(Revised effective January 1, 1994)

CONCLUSION:

Spousal Property Petitions are not simple. There are ton of nuances and gotchas if you are not careful. Using an experienced California probate attorney is important in these cases.

Best of luck with your legal matters. -John

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I am excited to announce that I have been invited to speak on California probate law and how to improve your trusts. This will be April 18, 2019 in Sacramento AND online! Here is a link to the Facebook page.

Probate & Real Estate Workshop.2019

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Ok, I admit it I just wanted to put “Game of Thrones” in my blog to see a spike in readership. I am sorry. It’s like the old days when we talked about Star Wars. Here’s the strange thing though, and this has absolutely nothing to do with California probate law, I have never watched GOT. I do not even know what it’s about. Strange I know. I wake up Monday morning, go to the gym, scan Facebook, and wonder what everybody is talking about. Am I the only person in the world who doesn’t watch GOT?

Well, anyway, once I get my GOT feelings over with I move on to California probate law. Perhaps since I have never since GOT I find California probate law more interesting and exciting. I am constantly reading blogs, articles, and legal papers about the latest California probate laws. However, more importantly I am constantly refining and improving my systems. I want my California probate law procedures and systems to be the most accurate and efficient of any attorney in the state.

I do not know anybody that works like we do in my office. If you contact me by about 3:00 most days of the week I can email initial probate documents to you, THAT SAME DAY, for you to print, sign and return. I will even include a FedEx return label for simplicity on your end. In many cases we can be on file within 24 hours and, for some courts, we can be on file the same day as they allow e-filing of most documents. No other lawyer I have heard of operates like this.

My feeling is most people want to get probate over with and move on with life. The quicker we file the quicker we finish.

So again, my apologies, that I know nothing about Game of Thrones, but any time you have a death in the family contact me and let’s get your probate case started ASAP!

-John Palley

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I saw this headline today and here’s a link to the article in Aretha’s hometown paper. The reality is it’s not shocking to have three wills and even three handwritten wills. This happens as people change their mind from time to time and/or in some cases handwritten documents might be wills. For a lawyer helping his client carry out their fiduciary duty it’s best to file all potential “wills” with the court and then let the Judge sort out what’s a will and what’s not a will.

Let’s back up a little. In California a handwritten will is valid as a “holographic will” if it’s:
1) written by the decedent in their own writing;
2) signed by the decedent;
3) dated or the timing can be established by content of the will.

Notice in California a holographic will does not require any witnesses. Certainly having two witnesses probably helps but it is simply not required.

Why do so many celebrities not have proper wills and trusts in place? I don’t know “the” answer but I suspect they are too busy making money, traveling from house to house, being tugged at from all types of hanger-oners, and the like. They don’t have as much free time as you and me. Obviously they should have a will and a trust and probably several trusts but it seems to be so common that they do not.

Let’s go back to Ms Franklin. So there are three purported wills of hers. I have not seen any of them and have no clue about anything specific to her case. I can give some thoughts from other cases I have seen. These are wild guesses on my part but I make them by reading the facts. For example, why wouldn’t she throw away the old wills? The best way to revoke an old will is to rip it up and throw it away. If it’s gone there is no doubt of your intent. Or write “REVOKE” across the face and keep it. That’s another clear showing of intent. Let’s talk about Ms. Franklin’s wills….

I will bet a cup of coffee that there will be allegations that one, or more, of the wills is not in Ms. Franklin’s handwriting. Will this be true? Heck, who knows. People’s writing often changes a little bit and, in particular, when people are old and/or sick their writing can look different. For example, people with Parkinsons start to write very small. So my guess is there will be some allegations that the last will is not in her handwriting.

Perhaps each will gives away certain assets. I have seen many times where handwritten, or other homemade, wills do not give away all property. So for example will #1 might say “I give my Detroit house to the Detroit Symphony.” Will #2 might say “I give my Detroit house to my friend Bobby.” Will #3 might say I give my Los Angeles house to my friend Debbie. So it’s possible will #2 will trump #1 as to Detroit and will #3 will give away the LA house.

Or maybe there is ambiguity. Maybe will #2 says “I give my Detroit house to my friend Bobby to live in since he loves it so much.” Ok, so does that mean Bobby essentially has a life estate in the Detroit house? Then does it go to the symphony when Bobby dies? What about the other assets? If the will doesn’t specify then the “residue” would go Ms. Franklin’s next of kin.

I could go on making up guesses but, as I said, I do not know.

I should add if Ms. Franklin really did have a house in LA she will need to hire a California attorney to do an ancillary probate. I perform ancillary probates throughout California as often people have property or homes in California. Maybe they inherited a home, had a beach home, had a timeshare, had desert land, etc… but they lived elsewhere at death. I handle ancillary probates in all counties in California.

If you have a death of a loved one, or maybe a hated one, in California let’s talk.

-John Palley

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I know for several years there has been a National Estate Planning Awareness Week every year in October. Now, I am not sure how many people have been aware of this and very likely the only people aware of this already have an estate plan in place. However, anything we can do to get the word out the better. It took me a second but I did find the 2019 week is scheduled for October 21-27, 2019. Here’s a link to information about it. As you can see it is put on by the National Association of Estate Planners & Councils.

So now that you are aware the question is what should you be aware of? I am a 100% California probate attorney and the simplest thing I can tell you is that people who do have not living trusts, in California, cost their families thousands of dollars after death. It’s really that simple. However, we could go further and I could tell you stories about people that create tax nightmares for their families due to the lack of planning.

So, GET YOUR ESTATE PLAN IN PLACE NOW! You are aware so you have no excuses! Get it done!

-John

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Lately I seem to have a run of small probate matters and I can say that small probates come in different sizes.  Though the rules are fairly simple I thought you might like to hear some fact patterns so you could see probate code section 13150 and 13200 inaction in real life!

1. Messed up Title in Auburn: This one is a huge mess! The family wants to sell the property but there was something like 8 or 9 siblings on the property at one point. One had deeded property to their kids and back, one or two deeded to the trust (good but one of them died), a couple have died with no wills, and a few are still alive. It is a big ol’ mess but we came in and did three things:  1) for the sibling that just died we are doing a probate code 13150 succession to real property (though his interest is less than $50k the family doesn’t want to wait the 6 months required for probate code 13200 under $50k affidavit), 2) we are doing an under $50k affidavit for at least one (if not two) siblings that died with no wills or trusts, and 3) we are doing a deed from the trust to the beneficiary for one of the siblings who put his interest into a trust.
2. 3/5th’s have died in Suisun City: I had never been to Suisun before a couple years ago and I must say it’s a cool little city. We stayed overnight at a hotel on the water and ate breakfast at a great little cafe a block over. However, this is a not a travel blog. My Solano county small case is a property that had been deeded to five children many years ago. Only two of them are alive and the three that died did not have proper California living trusts. Thus we have 3/5ths needing to be cleared but each 1/5th interest is separate. Luckily the value of the property is such that each 1/5th will be under $50,000 and thus we can do the probate code 13200 affidavit to the transfer the property to the rightful heirs. However, it costs money and it takes time. As with the first case these people want to sell!
3. 1/2 of farm land in Fresno: We are still working out the details but it appears that back in 2004 a gentleman died with a 1/2 interest in a farm in Fresno. For whatever reason that 1/2 interest was not in a trust at his death but nobody realized it until recently.  Like the capped crusader in flies the California Probate attorney to save the day! We are doing an under $150,000 succession to get this title cleared up and into the rightful heir’s names. However, it’s a little bit of a mess as we first need to confirm it is a 1/2 interest and not a 100% interest (my first look at the title history is not clear) and then we can send the inventory to the probate referee for valuation.
4. US based financial account for person living in Europe: This is an interesting one as it’s fairly unique. The account is worth about $200,000 and is invested with a major US investment brokerage in the decedent’s name. She was a resident of a European country but, at some point in time, had opened this US account as she has relatives here in California. She left a will which left everything to her surviving spouse. At first we were thinking we might have to do an ancillary probate but, after digging into it a bit, I think we are going to be able to utilize a California Spousal Property Petition to get this account, and it’s holdings, transferred to the surviving spouse. We are working on this now and just waiting for the official translation of the will. This is in Los Angeles county as that is where the investment bank account was held.
5. US based bank account for person living in Australia: This one has been going on for over a year. We were contacted by an attorney in Australia who was helping some people down there (or is that “down under?”) clean up their mother’s financial affairs. She had left a bank account at a San Diego based bank with an unknown amount of money. We got letters issued by the San Diego probate court and quickly determined there was about $200,000 in the account. However, things started to slow down there. In order to get the money out we need to get a tax ID number for the estate.  The problem is we can’t get a tax ID number without a social security number. The kids are Australian and/or New Zealand citizens and do not have US social security numbers or international tax ID numbers (ITINs).  They are in the process of trying to obtain ITINs but that process is extremely slow. The last letter from the IRS indicated the people had to send their original passports to the IRS. Understandably they were reluctant to do so. In the meantime we wait. Hopefully the money is collecting interest while we wait!?

These are just some examples.  I thought you might like to see what small estates look like. Some end up as “full probates” but they are small full probates (like #5) while others utilize the more efficient options like under $50k affidavits, under $150k successions, or spousal property petitions. We always look at all options so we can do what is best for our client!  It’s important that you work with an attorney that knows what all the options are so that they can explain them all to you!

Here’s a link to a page on my website that talks about some of these options.

Here is a link to the $50k affidavit.

Best of luck dealing with the California probate process!

-John

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After doing approximately 1,500 California probate estates, or “full probates,” I have a pretty good idea what the costs will be… but it’s still an approximation. Today I want to discuss the current costs and what you can expect.  Our probate cost calculator is a good start but remember it’s an approximation.

So first thing is first and you know this… the man has got to get paid and the man is Uncle Sam or, in this case, Uncle Gavin Newsom. The State of California Superior Court collects a filing fee of $435 which is on the statewide unified fee schedule. That fee schedule is officially called:  “Superior Court of California
Statewide Civil Fee Schedule” and can be found here.  The interesting thing is some counties charge add-on fees so the idea that there is any statewide uniformity is sort of a joke. Nonetheless, you will pay $435 to file a probate case in California and you will pay $435 to end the probate case when you file the final petition or final accounting.  Additionally in some cases other petitions are required and most counties charge $435 for each of those. Common other petitions would be: petition to determine heirship, petition for instructions, petition to confirm sale of real estate, status report. In a typical case you will pay $435 two times, and maybe a misc. county fee, so let’s call it about $900 in actual court costs in the typical California probate case.

The second fee you pay is the cost to publish in a local newspaper. I have talked about this before and I must say my feelings haven’t changed.  The only reason many old fashion, paper, newspapers stay in business is their fees to advertise things like probate, bankruptcy, and other such “legal notices.” In some places there is really only one newspaper that can be used and I know of at least one city where that cost is approximately $1,000.  However, let me backtrack and say a more typical cost is $200-300 for publication.  As you can see in my probate calculator I put down $200 but that’s at least 10 years old so let’s $300 for publication in the typical California probate case.

The next big fee is the probate referee. This is another one I have talked about before as in some cases I feel the probate referee is paid too much… but in other cases they are paid too little so I suppose it balances out.  The probate referee(s) for each county are state appointed officials. These are coveted positions. Their pay is 1/10th of 1% of all assets they appraise and they appraise all non-cash assets. Plus, they can charge some misc. fees for traveling to a property and the minimum is $75. So a $100,000 would be $100 in appraisal costs (1/10th of 1%) plus travel costs of maybe $25 or so.  As an estimate let’s just say a good estimate, for an average sized probate case, would be $500 to the probate referee.

Next we have lots of misc charges. They are small but every case has a few.  The courts all charge $25 for each certified copy of a document. Now some courts, and don’t laugh because this is true, they charge 50 cents for each page as a photocopy charge. I find this funny because the $25 charge is for a “certified copy” but I have to pay 50 cents for a “copy” before I can then make it a “certified copy!?”  Seems stupid to me. In any event it’s about $25 for each certification and you probably get 2-5 each case. You usually need a couple death certificates and sometimes a death certificate for a predeceased spouse or other deceased relative. Figure $20 for each death cert.  Let’s just say $200 in misc charges in a typical California probate. 

The total of all of the above, typical charges, is about $2,000. That’s generally my estimate when we start a probate case… unless I know the decedent lived in a city with a high publication cost or it’s a bigger estate so I know the probate referee will cost more. Each case is unique and it’s important you talk to an experienced California probate attorney so you can get a firm estimate of what your court costs will be.

Until next time….

-John Palley

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I have reported on this before but a good reminder there are tens of thousands of people who have money being held by the state of California. Go check your name and see if any is there in your name. Here is the link to that California lost property page or is the found money page!?

California’s Unclaimed Property Law requires banks, insurance companies, corporations, and other entities to report and submit unclaimed property to the State Controller’s Office (SCO.ca.gov) when there has been no activity for a certain period of time, generally three years. The state may be protecting your unclaimed property. To find out, view the database at www.claimit.ca.gov or call (800) 992-4647.

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A client contacted me last week and said she needs “an actual deed in her name” so that her “document specialist” could transfer the house to her trust.  I re-sent her a copy of the court order that I recorded after her husband died. I explained that we did a spousal property petition, to transfer the property from her husband to her, and thus there is no an actual “deed” but instead the Judge’s signature is what transfers the property.  She told me, “the woman at GO DEED’S won’t accept the court order as an actual deed.  She wants the original deed.  She’s refunding my money and canceling my order.”

I replied to that email by suggesting the person did not sound very sophisticated or knowledgeable and was probably not an attorney.  I told her it was not possible to create a deed in this type of case so the person just flat out does not know what she is talking about.  She replied, “no, she’s not an attorney, she’s a document specialist with Legal Zoom.  She won’t speak to additional parties.  It took a lot of attempts to get her to speak to me.  Yes, you were hired for this work and you did an awesome job. Thank you.”

So my question is, WHAT IS A DOCUMENT SPECIALIST?

I feel like the word “specialist” connotes that someone is knowledgeable or even an expert but that does not seem to be the case. I should add that I have seen client’s get stories confused.  Sort of like the old telephone game – as the message is passed from one person to the next the message gets changed.  Sure that’s possible here but my client seems pretty clear.

So the question then is why are you dealing with a paralegal or document specialist and not a licensed, practicing, and experienced probate ATTORNEY?  Don’t let the above happen to you. Find an experienced probate attorney and get it done right.

My office handles probate matters throughout California.  Let us know if we can help.

-John

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I love celebrity probate and estate stories. The latest is a double celeb story! Paulina Porizkova was excluded in Ric Ocasek’s will according to the story I read. Paulina was, of course, a famous model and actress.  Her husband, or according to the story estranged husband, Ric Ocasek was the lead singer of the Car’s. The Car’s had some HITS back in the late 70’s and early/mid 1980’s!  Some of the hits included:

• Let’s Go!
• Best Friend’s Girl
• Good Times Roll
• Since Your Gone
• Tonight She Comes

The list goes on….

According to the stories I read Ric and Paulina were separated so Ric specifically excluded her in his will. This is an important step as, at least in California, even when you file for divorce you are allowed to change things like wills. The exclusions, or things you can not change, are non-probate transfers. Of course, talk to your family law attorney before you change anything!

In this story it appears Paulina was taking care of Ric at his death but, apparently, he didn’t change his will back. However, I wouldn’t be surprised if she had more money than him. Obviously that depends on if they co-mingled their money, if they had a pre-nup, and how they titled their assets among other things. Here’s a link to a story in the NY Daily News.

So you might think it’s magic but really it’s time to say bye bye love and say since you are gone.

-John

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I find myself a little frustrated by a potential new client that has decided not to hire me… at least not at this time. Not everybody hires the best probate attorney and that’s fine. They don’t know what they don’t know. However, YOU know because you are reading this blog. So I got their voice mail at about 5:15 PM Friday afternoon and I called back within 2 minutes. That’s how I roll!  Do most attorneys do that?

We had a good talk, I got the information I needed, and told her I would get started Monday morning. A man of my word I called her in the 9:00 hour Monday morning to get one last bit of information. I actually got a jump start and reached out to the attorney in the home state (or domiciliary state) over the weekend just to touch bases as the client had asked me to when we spoke Friday.  I already had traded emails with him and set up a call for Tuesday morning.  I strongly believe in starting probates fast, in most situations, as the sooner you start the sooner you can sell real estate and the sooner you can be DONE!

In this case it was going to be an ancillary probate as the decedent lived in another state but had recently bought a piece of land in Riverside county, California.  So a $200,000 – $250,000 piece of land would be the only asset in the California probate.  There would be some other assets in the other state probate but they would be handled in the home state and not part of our ancillary probate here in California.

First of all an ancillary probate is the same as a full probate in basically all regards. It is not a mini probate or partial probate. It is a full probate of the asset, or assets, held in California. This surprises some people who think it’s only a partial probate. The confusion is that sometimes the ancillary asset is worth under $150,000 and thus a small estate procedure is often utilized. In fact, I would say the most common ancillary petition I file is the under $50k affidavit which is usually for a piece of desert land in Kern, Riverside, San Bernardino, etc… or a timeshare.  Another common one is the under $150,000. However, if the property is worth over $150,000 then it is a full probate but with the word “ancillary” added to the petition.  That’s the only difference from a regular probate – one word on the initial petition! You still need to publish in the newspaper, notify creditors, make sure taxes are paid, make sure you have the right beneficiary, etc….

As you know from other posts I have made California has a probate code statute for the payment of normal, or “ordinary” probate attorney fees. It starts at California probate code section 10810 et seq. There it states:

“10810 (a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows:

(1) Four percent on the first one hundred thousand dollars ($100,000).

(2) Three percent on the next one hundred thousand dollars ($100,000).

(3) Two percent on the next eight hundred thousand dollars ($800,000).

(4) One percent on the next nine million dollars ($9,000,000).

(5) One-half of 1 percent on the next fifteen million dollars ($15,000,000).

(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

(b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.

(Amended by Stats. 2001, Ch. 699, Sec. 4. Effective January 1, 2002.)”

This particular case is interesting, and really this is the focus of my blog post, as the potential client mentioned they wanted to pay hourly rather than percentage based.  I only charge statutory (or percentage) as, to me, it’s fair to both sides.  Let me explain.  The percentage based fee is calculated as follows.  I will assume the California real property (a vacant lot in a nice area) is worth $225k. The fee is calculated as follows:

4% of the first $100,000 = $4,000

3% of the next $100,000 = $3,000

2% of the next $25,000 = $500

Total fee: $7,500

I explained to this potential client that I think she will have a hard time finding an experienced probate attorney who would do the fee hourly as, in my opinion, it’s only rookies and general practitioners who might do that. However, any experienced probate attorneys (I have done approximately 1,500 probate cases myself) in California charges the statutory fee. It’s simple and it’s fair.

Anyway, I explained that if she found someone who would do this case hourly due to it’s modest size I doubt she would save any money. If she found an attorney with a low hourly rate, if no surprises happened, and if everything went perfect perhaps she would save a $1,000 or $2,000.  I explained to her that if anything went wrong, or if any surprises come up, or if there are any complications with the real estate sale or a foreclosure started, then I could easily see the hourly attorney fee being MORE than the statutory fee.  Plus, I said it depends on if the attorney she finds is honest with his or her timekeeping. I hate to say that but I know a lot of clients are concerned about that. Charging by the statutory, or percentage, method we take away that dishonesty concern.  Let’s say the average probate attorney in California charges $350 per hour.  At $350 an hour the break even point is 21.4 hours of work.  At my hourly rate ($495/hour) the break even point is 15.15 hours. Of course some attorneys charge much more than me so the break even point will be even lower.

A full probate takes time as there are a lot of steps to get it done properly, efficiently and in a timely fashion.  We try to plan ahead so that as each deadline approaches we are ready to handle it and move on to the next. I say it is similar to a high hurdles race. We gracefully approach each event, or hurdle, glide over it, and move on to the next….

If you are looking for an honest, efficient, hard-working California probate attorney please reach out to me. I would love to see if we can help you navigate the California probate process!

-John

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UPDATE AS OF JANUARY 1, 2020 – NEW LAW FOR THE NEW YEAR.

THE LIMIT IS NOW $166,250 OR LESS Instead of the old law of $150,000 for small estate procedures. This will enable a few more estates to sneak into small estate territory but really it’s a minor change as it’s been set at $150,000 for about 15 years or more!

The same number, $166,250, also applies for the probate code section 13100 small estate affidavits.

Also the former $50,000 limit for small estate affidavits for transferring real property of low value is now changed to $55,425.  

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“There are no words” was a text I received from a good friend born and raised, and still living, in Los Angeles. He’s a big Laker’s fan and a big Kobe fan.  Kobe was beloved in LA but also throughout the US and even the world. He was truly a world class athlete.

RIP Kobe Bryant – LA Lakers – August 23, 1978 – January 26, 2020

I have words but it’s because I deal with death every day of the week. It’s what I do professionally and it’s all I do professionally.  My practice is 100% California probate cases.  Please understand this post is made with zero actual knowledge of Kobe’s financial or estate planning situation.  I am merely making guesses. His estate plan is probably more complex than a regular guy like you or me. So this post is about Kobe Bryant’s estate.

So the first thing I thought was what would I do if I was contacted by Kobe’s widow or, more likely, one of her attorneys or assistants.  The reality is it sucks no matter what.  A young man has died, one of his children was on the helicopter with him, and 7 other people also died. There are no words to put in to perspective the death of 9 humans including multiple children. As a probate attorney, with 25 years experience, I can separate the personal and the business. My job is the business of probate or the business of cleaning up the financial side of things. That’s what I am hired for. So, WHAT WOULD JOHN PALLEY DO?

A guy like Kobe Bryant seemed to have a lot of irons in the fire so to me the first thing I would do would be to get letters of special administration issued to Kobe’s wife or maybe even a professional fiduciary or possibly even another probate attorney.  My guess is there are going to be assets and liabilities just in Kobe’s name alone so having letters issued right away could be important so that someone steps in his shoes to legally making decisions if needed.  While we know they had trusts and LLCs we don’t know if all assets are in those entities but I can almost guarantee not everything is properly titled as it almost never is.

I would also, simultaneously, file for full letters.  I would probably ask for the same person (Vanessa, professional fiduciary or another probate attorney) to be appointed and, of course, with full IAEA authority. This assumes there is no will which names an executor. If there is a will naming an executor we would evaluate those names and determine what’s best and then talk to them about serving or declining to serve depending on who they are and what experience they have.

If there is no will (which typically waives the requirement of a bond) it would be hard to get bond waived since there are minors so I would put the appropriate surety bond in place.

Another reason to have a third party appointed administrator as there are very likely going to be some conflicts of interest if Vanessa was the administrator of the estate.  This is really an important point.  For one, she will likely need to file a spousal property petition to transfer her share of assets to herself and for a second there could be some major creditor issues since 9 people died in the helicopter crash.  Plus, she might need to make some tax elections or disclaimer within 9 months of death.  Plus, there could be assets with split interests.  There are just a lot of issues that could come up which might make having a professional fiduciary or attorney well worth it. That’s my guess without knowing more.

I hate to mention the liability but that’s always where my mind goes. Who might sue the estate?  I would put the estates of every person who died on the helicopter on my creditor’s notice list.  That’s not sent out for a couple months so we have time to put the list together.  I would look through Kobe’s various business ventures to determine if there are any loose ends or any possible issues. I would then put those people and/or companies on notice.

Next step would be to set up guardianships for the minor children to the extent it’s needed. Guardianships are required if a minor (under 18 years old) is inheriting assets outside of a trust.  This might be the case here.

I did some digging and see that their beautiful house in Newport Beach is titled in an LLC. It was previously titled in a trust in Vanessa’s name after they bought it from Laker’s executive Rob Pelinka. The act of holding a personal residence in an LLC is quite unusual for us mere mortals. However, their 6 bedroom, 9 bath, 15k square foot house is in an LLC.  There are multiple websites that give out the address but I hate to do that. Here’s an article about his former house in the LA Times.

The bottom line is we don’t know what Kobe’s situation is. I am making assumptions and guesses in this post. I would assume he and Vanessa set up a living trust but like most 40’ish year old people they probably didn’t have the trust very well funded. Most 41 year olds don’t think they are going to die and they typically think of a trust as something they will deal with in the future.

Beyond all that, Kobe seemed to have a lot of business ventures going.  I have seen it countless times where younger people, movers and shakers, often have business and real estate interests in their name alone.  It’s not that their spouse doesn’t own half, as they typically do unless there is a solid pre-nup in place, but typically the one spouse just takes care of business and doesn’t want to be slowed by having to get their spouse’s signature on things.  I have seen this many times in my professional career.

So we don’t know but the above are some guesses.  Hopefully Vanessa finds expert probate legal counsel quickly. Yes, it’s tough when you are dealing with such a tragedy but business goes on, lawsuits go on, troubles go on. This stuff needs to be addressed!

Thoughts and prayers.

-John

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