I recently became acquainted with HomeLight.com. This website helps consumers find experienced Realtors to help them with their home sale among other features. It’s a really robust site and I encourage my readers to check it out!

It has extensive information about the probate process and helping you find a probate experienced Realtor. This is a great resource for a person who is selling a house in an area and you haven’t received any referrals. Homelight.com screens the Realtors to find the best of the best and, in particular, those with probate experience.  Here’s the probate page: https://www.homelight.com/probate-real-estate

Another feature I really like is the appraisal estimator. This aggregates multiple sites, like Zillow, to give you a broad range of value. Here’s that feature: https://www.homelight.com/home-value-estimator

Lastly, if you want to sell quick it has a feature where it will present your home to multiple investors who will buy your house quickly and for cash. I am told they will pay 80% or more of fair market value sight unseen. I have not tried this out but it sounds like a great option for some consumers. Here’s the link: https://www.homelight.com/offers

All in all I am very impressed with what I have seen from Homelight.com and look forward to their future offerings as I am sure they will continue to grow and expand!

-John

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I have been asked the questions many times how should people hold title to real estate in California. Let’s talk about the options.

First and foremost, for anybody that owns real estate in California, the best method is in a California revocable living trust. The other options, below, are a distant second place.  Why is that?  The main reason is that trust ownership avoids probate after death and it also avoids the need for a conservatorship if incapacity happens during life. It’s really that simple.  Probate and conservatorships are extremely expensive and should pretty much always be avoided.  So owning a property in a revocable living trust is the best.

However, owning property in a trust is not the only method and there is one primary reason everybody does not have one… they are expensive to set up.  You can easily spend $2,500 to have an experienced estate planning attorney prepare a living trust package. That’s a lot of money to just about any of us. Plus there is some work involved to get your assets into a trust.  So, let’s say you don’t have a trust… then how should you title your California real estate?

I stress California because other states might have other options. For example “tenancy by the entirety” is something that exists in other states but not in California.  TBE may be a great option… if it was legal in California. So that’s a non-starter.

The most common debate in California real estate is if a husband and wife should own property as “joint tenancy,” as “tenants in common,” or as “community property with the right of survivorship.”  Which is best for you?  Of course, each case is unique and you should talk to your own attorney to get legal advice.

JOINT TENANCY:  JT is really the granddaddy of real estate ownership. It’s probably the most common way to own property in California. Joint tenancies have to be equal (i.e. 50/50 or 1/3 to each of three people or whatever is equal for the number of owners) and automatically transfers to the surviving joint tenant (or tenants) upon death.  Joint tenancies tend to be a good option but not always the best.  One problem is that the survivor does not get a full step-up in basis, at the first death, as they would with a trust or with CPWROS (discussed below).  Also, JT is not good if you do not want the property to transfer to the other tenant or tenants.

TENANTS IN COMMON:  TIC is commonly for non-married people or any co-owners that want full control for their portion of the real estate. If a deed does not specify otherwise it defaults to TIC in California.  TICs also can be used for advanced estate planning purposes by use of a tenancy in common agreement but that is an issue for another day.  A TIC is a good option when you do not want the property to transfer to the survivor upon death.

COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP:  CPWROS is probably the best option for married couples to own property (other than a trust).  This would be for long term marriages or for any marriage for both spouses want the surviving spouse to have their interest in the property.  It’s similar to a joint tenancy, in that the property transfers automatically upon death, but the surviving spouse gets a full step up in basis for tax purposes which can be a huge deal in more valuable properties.  CPWROS has only been around in California for about 15 years.

COMMUNITY PROPERTY: Before California had CPWROS they had CP (without WROS).  CP is good in that it gives the surviving owner a full step up for tax purposes but the property does not automatically transfer upon death. Instead the surviving spouse has to go to probate court and do a spousal property petition. This is costly and time consuming.  There are many old deeds that have CP ownership so check your deed as, in my opinion, this can be the worst way to own property.

Other options to own property include limited liability companies (LLCs) but that’s primarily for investment properties and beyond the scope of today’s post.

Thanks for reading!  -John

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A lot of people who google the question “how long should a California probate take” probably are either:

1) contemplating hiring a lawyer who says it will take a year or more; or
2) in the midst of a probate with a lawyer who is taking a year or more.

I have personally completed over 1,000 California probate cases and they should usually be done within a year. There are only a few reasons probate should go longer than about 8-9 months in fact. Those reasons are:

1) Bad Court Dates- The fact is some courts are overly busy and you can get court dates 2-3 months out. You need at least two court dates during probate plus a four month probate period. So you can get up toward a year if you get bad court dates.

2) Creditors- The one year mark is considered the hard line for creditors to file claims. If you do not know much about the decedent’s life and/or have concerns about unknown creditors waiting until after one year makes sense.

3) Selling Real estate- When you sell real estate in probate you have a few less disclosure requirements than if you sell it after probate. In my opinion this is rarely a major issue as you always have to disclose known problems no matter what. However, on rare occasions it may make sense to sell real estate during probate. Right now selling real estate in four months is no problem but if it’s a unique property it could take longer.

4) Disputes- There are cases with disputes about who the heirs are, disputes about what a will means, disputes about property ownership, disputes with taxing authorities and disputes with creditors. All of these could delay a probate longer than a year.

If you are not dealing with one of the above then your case should be about 8 months IN TOTAL – from start to finish.

If you would like to hear about how I do FAST California probates contact me to discuss your case.

-John

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People are often pleasantly surprised to learn that the answer to this question (Can I sell a house during a California probate) is an affirmative, YES!  That is correct, without hesitation, and that is without any doubt.

Y – E – S !

You can sell a house during a probate in California. However, there are timelines to be aware of and procedures to follow. Let’s talk about some of them here….

First of all you can not take any action, including selling of real estate, until you have authority from the California probate court. This means the Judge has to decree a court order and the Clerk has to issue Letters of Administration or Letters Testamentary. That “letters” document is what puts you in the decedent’s shoes to transact business.

Second is filing correctly in Court. It is very important that you try to get “full” authority under the California Independent Administration of Estates Act (IAEA).  Full IAEA will allow you to sell without formal court confirmation as long as nobody objects to the sale. Going through a court confirmation process can cause some buyers to go look for a different house to buy so we like to avoid that process when we can.

Third is to hire a great California Realtor. I encourage people to work with experienced Realtors who want to work hard for you. Like any profession there are lazy Realtors who want to throw a listing up on the MLS and do little else. On the other hand there are some amazing hard-working Realtors who will go above and beyond to earn their commission. I help my clients find those superstars!

Fourth is to get the house ready for sale just like any other sale. Clean out the garbage, paint a wall, put some flowers in the front yard, etc….  Be aware that there may be heirs or beneficiaries who have an interest in what you clean out so do not throw anything away or give to a thrift store without talking to those interested people.

Fifth is finding a buyer and making sure to use the Probate Purchase Agreement (Form-PPA).  This forms has the required language that differentiate a probate sale from a regular sale. For example, it says that Court confirmation MAY be required. That is, if somebody objects to the Notice of Proposed Action your attorney will send out. Make sure your Realtor asks for offers to be submitted on Form-PPA.

Sixth is to discuss the offers you receive with your Realtor and talk to your probate attorney too if you wish. Though I am not a real estate expert I have supervised hundreds and hundreds of real estate sales during probate so am happy to give my two-cents to help you select the best offer, counter offer as needed, and get into contract with the right buyer!  Your probate attorney will then send the Notice of Proposed Action (NPA) to all interested parties and communicate with the title company to get them the information they need.

Seventh is to talk to your Realtor about what disclosures are required. The disclosures are more limited in a probate sale than a regular sale so talk to your Realtor about those forms. Of course any actual known problems must be disclosed.

Eighth is to close escrow and put the money into the estate bank account. Remember if there is over $250,000 at one bank it’s a good idea to move some of the money to another bank so that all the money is covered by FDIC insurance. The current FDIC insurance limits are $250,000 per bank. While I acknowledge bank failure is not likely you need to remember that you have a fiduciary duty to protect that money!

This is just an overview of the real estate sales process in a California probate and certainly you should talk to an experienced California probate attorney about your case to make sure you follow all the rules correctly in your case!

-John

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Back in 2016 I wrote my first book on the California probate process.  It is called How to Live and Die with the California Probate: a Layperson’s Guide to the California Probate Process. I have put a link below if you want to buy it. If you want a FREE copy just send me an email and ask!

I wrote the book to try to help young attorneys, general practice attorneys, and do-it-yourselfers with the cumbersome probate process. I intended to point out some nooks and crannies of the system that catch people and cause delays. I believe the book accomplishes that and should help you avoid some of the pitfalls but obviously it can not list every last pitfall as it would be hundreds of pages and need to be updated monthly!

As an attorney who has completed over 1,000 California probates I am not normally caught by surprise in a probate. However, if you have not done 1,000+ you might be. My book is designed to help you and, as I said above, it’s FREE if you just ask me.

For at least 10 years I have been working on a more complete guide to the California probate process. Unfortunately it remains a work in process. I hope to have it done this year but I have been hoping that for many years. In the meantime you can get my current book for free.

Best wishes to you as you navigate the California probate process!

-John

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I can’t get no respect, no respect I say…. Oh wait, I have my celebrities and their lines on respect wrong but we have yet ANOTHER celeb dying without a proper estate plan in place. Here’s a good article on CNBC about Aretha’s lack of planning.

With an $80m estimated net worth the costs of probate, if she had lived in California, would be somewhere OVER $100,000!

Failing to plan is a great way to end up in probate court after death and enrich a lawyer and enrich a court system. Avoid it by showing some self respect and get your estate plan in place!

https://www.cnbc.com/2018/08/22/aretha-franklin-left-no-will-why-you-should-plan-for-your-death.html

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Sacramento Magazine was kind enough to interview me in their August 2018 issue. The issue includes the area’s top lawyers, which I am listed, and interviews me for the article in the estate and probate area. Check it out here at Sacmag.com.

The post Sacramento Magazine – article August 2018 issue appeared first on Probate Sacramento CA | Trusted Probate and Estate Attorney.

What a week in America with John McCain and Aretha Franklin’s funerals being must-see TV on seemingly every channel.  Yesterday I was presented with yet another article about Aretha Franklin’s lack of estate planning. Here’s a link.

The question is what would her probate and estate look like had she died in California with no will or trust? What would be happening here? Let’s hypothesize….

I have seen estimates for her estate to be valued between $50 and $100m.  She has real estate in Michigan as the article says and I assume cash, stocks, bonds and a TON of future music royalties. These are assumptions on my part.

She has 4 adult children and one of them is developmentally disabled. The lack of planning will be especially painful to that child in my opinion.

WHO SHOULD BE ADMINISTRATOR?

When someone dies this should be the first question. Someone needs to get into a position of authority to stand in the decedent’s shoes… no matter how big those shoes are to fill!  In a California probate the order of priority for who should serve as Administrator is determined by probate code 8461. There the order is:

(a) Surviving spouse or domestic partner as defined in Section 37.

(b) Children.

(c) Grandchildren.

(d) Other issue.

(e) Parents.

(f) Brothers and sisters.

(g) Issue of brothers and sisters.

(h) Grandparents.

(i) Issue of grandparents.

(j) Children of a predeceased spouse or domestic partner.

(k) Other issue of a predeceased spouse or domestic partner.

(l) Other next of kin.

(m) Parents of a predeceased spouse or domestic partner.

(n) Issue of parents of a predeceased spouse or domestic partner.

(o) 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.

(p) Public administrator.

(q) Creditors.

(r) Any other person.

I highlight (b) and (g) above.  The article indicates Aretha’s niece is serving as personal representative. In California the children would have clear priority to serve. I do not know what Michigan law is but I would always advise my client to first consider serving as administrator before relinquishing that job to their cousin. We don’t know all the facts though. Maybe there is good reason for this!? Maybe Aretha’s children are not good with money and the niece is an accountant, a lawyer or a financial planner!? Let’s assume that. In any event, if this were in California the order of priority is clear.

WHO GETS THE MONEY?

The next question is who gets Aretha’s money. This is pretty clear. The money, at least if she lived in California, would be divided between her four children. I will assume Michigan law is the same. In California the laws of intestacy are laid out at probate code 6400 et seq. They pretty much follow the family tree except for married people it gets more complicated. In California the money would be divided by her four children equally.

However, when you get into music royalties you get into hard to accurately value assets. I have had cases with music royalties before and they can create interesting twists. The issue of who should get the music royalties might relate to what they are valued at and who is willing to take a chance on them increasing in value.

WHAT ABOUT SPECIAL NEEDS?

The lack of planning is going to be potentially costly, for the family, as relates to the child with special needs. If Aretha had set up a special need’s trust, prior to her passing, she could have picked a trusted person to watch over the assets without Court involvement. The on-going monitoring of a special needs trust in court, at least in California, could be very costly. People with a special child, like Aretha, are under extra pressure to get their affairs set up right. This is a big fail on the part of her or her advisors.

THE TAX MAN COMETH

As Sir-Mix-a-Lot once rapped:

If you’re livin too large, ya better watch that [beep]
Cause the IRS
Is gonna take yo stash

He went on in Take My Stash to say:

TAXMAN COMETH, TAXMAN TAKETH
TAXMAN’S A PIMP, SO THE TAXMAN BREAK-ETH 

So yes the tax man will definitely be getting involved with Ms. Franklin’s estate.  A single person can give away approximately $11m tax free in the United States. The thing is if she had met with an estate attorney who specializes in high net worth planning, like my law school classmate Steve Oshins in Las Vegas, her family might pay little or no estate tax. However, without the proper planning her family might be writing a check to the IRS for $25 million or more within 9 months of death. OUCH!

THE COST OF PROBATE

So the tax man is paid but we still have the costs of probate to deal with. If Ms. Franklin had died in California the total cost of probate (attorney fees, PR fees, probate court costs) could exceed ONE MILLION DOLLARS. That’s a mil on top of the above estate tax hit. Yes, a great day for a probate attorney but this cost could be easily avoided with a revocable living trust. I do not know the costs of probate in Michigan so it could be more or less but the point is you can easily avoid this cost after death.

SPENDTHRIFTS

I mention that the adult disabled child’s money will be protected and probably by some type of court proceeding… at least it would be in California. What about the other children? Might they already have gone out any bought new Bentley’s like so many children of wealthy people before? Perhaps it would make more sense to set that money up in trust with someone else as trustee!?  Perhaps it would make sense to set that money up in some type of generation skipping trust so that the money is not taxed AGAIN when the children die!? Again, proper planning would have addressed these major issues but Ms. Franklin failed to do so unfortunately.

CONCLUSION

I am sure many celebrities are reading this blog post, right!? All of you wealthy celebs should get your estate planning properly organized NOW! Do not delay.  I do not care how busy you are making music, or making movies, or whatever… take care of your family and avoid the unnecessary costs of probate and unnecessary estate taxes. Get your estate planned and then update that plan with a top notch estate planning attorney.

RIP Ms. Franklin.

-John

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Today is September 27, 2018.  I had a hearing on a petition captioned as:

PETITION FOR TERMINATION OF

PROCEEDINGS AND DISCHARGE OF

PERSONAL REPRESENTATIVE

This was filed under California probate code section 12251. This essentially was a probate that turned out to not be required. It was originally filed a couple years back as the decedent may have been damaged by the pharmaceutical ACTOS and thus his family, or his estate, may have a right to a claim. I was hired in this, and many other similar cases, to begin the probate process as the ACTOS lawsuit required letters to be issued by the California probate court in each case.

In the end this decedent did not qualify for money requiring a probate and thus we are filing to close the probate as a zero asset estate. That is, there is no money in the probate so there is no need to complete the probate.

I have filed this exact same petition in several other counties. Of course that’s not an argument you can use with a Judge. I do find it funny that several other Judges, in bigger counties, felt the document was just fine as filed… but I digress.

I do not want to say which court as it’s my opinion the calendar notes were not needed and the Judge should have allowed the petition.  Let me be clear I am not saying the Court was wrong but rather I think it could have easily been solved today and the books cleared of this one case.  However, I am not the Judge so doesn’t matter what I think.  Let’s just say this took place somewhere in the heartland of California: Fresno, Tulare, Kern, Stanislaus, San Joaquin, etc…. It was in one of those counties in the middle somewhere.

So our hearing was today, 9/27/18, and our continuance date to remedy the problems is 2/14/19.  That is 4.5 months away!  Happy Valentines Day to me! It really doesn’t “matter” to me or my client as I am not getting paid at this point. I am just trying to end this case since there is no asset. Plus, I do imagine the widow of the guy that died is tired of this case dragging on. She probably thought she would get a decent amount of money from the lawsuit, as the pharmaceutical lawyers may have told her, and that didn’t happen. A bummer for sure and an extra bummer to be reminded of it by the ongoing probate.

For those who care about the details the probate court’s tentative comments, posted before hearing, were:

“NOT READY FOR HEARING – Petition for termination of proceedings and discharge of personal representative [PC 12251] NOTES- 1. Need further allegation per PC 9202(b) re an heir or beneficiary having PREVIOUSLY been confined. 2. Need allegation re after-discovered property/omnibus clause”

Let’s break these two items down.

1. They want further allegation regarding the possibility that an heir or beneficiary was not previously confined to a California state jail which would cause restitution to have to be paid. Funny thing I used the exact same paragraph I have used hundreds of times but I will refine it going forward to make sure it speaks to previously confined. I already said there are no assets so I am not sure why it matters but they want it!
2. They want an “omnibus clause” which is the clause that says if there are assets discovered in the future they should be transferred to a specific person.  I get it. The Court is trying to simplify things in case there are future assets.  It’s not a big deal. It won’t happen but if the Court feels that is right then they should just add it in to the order. It’s a very minor issue.

My point on #2 is I would rather skip it as there are no assets and thus #1 becomes irrelevant also.  If 1 and 2 are both irrelevant then you can end the probate today and get it off your books. Courts are backed up and thus, at least this court, is continuing matters 4.5 months, so let’s clear the books and allow other cases to not be delayed 4.5 months to remedy a very minor procedural issue. It would seem a lot simpler to just work to END matters now rather than clog the system which thus causes 4.5 month delays for people.

/Rant

-John

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I recently discussed a case with a potential new client. The facts are similar to other cases I have seen before and I thought it might be helpful for you, my loyal readers to hear of such a case. I have simplified a few of the facts and modified so this is similar but not identical to any real client, but generally here is the situation:

• I was contacted by Wife;
• Her husband died recently;
• They have a house in his name alone as “his sole and separate property;”
• There is a signed deed to husband but it’s possible wife did not actually sign it (deed fraud?);
• A combination of community property and separate property were used for the down-payment and/or mortgage payments;
• They have two kids together and there are no other children;
• The house is the only significant asset;
• Let’s say the house is worth about $400,000 for simplicity;
• Husband had no will or trust.

What to do?  How should we attack clearing title in the California probate court under these circumstances?

First and foremost I look at what is best for my client? That’s my job as an attorney. We have the ultimate “fiduciary rule” and always should put our client first!

ATTORNEY FEES

Attorney fees are certainly one of the first things to consider so let’s compare the options.

A full probate, for a $400k estate, would cost about $11k in attorney fees plus about $2k in Court costs.

A spousal property petition alone won’t be enough as the property is listed in her husband’s name alone and there is a separate property component that we won’t be able to overcome based on the facts of the case. So we likely have a combination of an SPP and an under $150k succession to real property. So two probate court petitions.

These other petitions do not follow the probate fee schedule. Attorney fees are based on what each attorney charge. I would guess a range of $3,000 to $10,000 in attorney fees for each petition plus court costs for each petition.  So, as you can see the family could easily spend more than the cost of just doing the one “full” probate petition.

If this were a million dollar house then I might have a different conclusion.

However, attorney fees are not the only consideration.

CREDITORS AND TAXES

Another consideration, for which procedures to use, are creditors and taxes.  Each case is very unique here. I will not discuss this case specifically but some factors we look at are:

• Is the decedent the only name with the creditors or did the spouse sign too?
• What type of creditors (credit cards, mortgages, reverse mortgages, lines of credit, general creditors)?
• Are taxes owing by the decedent?
• How much is owing on the debts and taxes?
• Other personal and unique factors.

FAMILY

A big issue is who are the next of kin and are they friendly. In this case it is mom to the decedent’s children and she believes they are all in agreement and friendly. In many cases the prospective client is “evil step-mom” in which case we would need to take a more aggressive approach to establish as much of the house is community property as possible. In that instance the SPP might be a good choice. In a friendly case the full probate might be better.

OTHER FACTORS

Each case is so unique.  Does the time matter? An SPP can be done in a couple months while probate is more like 8 months.  Are they trying to sell the house? What county will we be filing in?  The list goes on.

CONCLUSION

In conclusion, don’t jump the gun. Consider all the facts of the case, evaluate your options, and then decide which plan to go with. If I can help evaluate your case call me or send me an email.

-John Palley

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We lost my mom back in March of 2016 and I still get a lot of mail for her. My favorite is from AAA which says, on the envelope “WE WANT YOU BACK.” We get a chuckle, though a sad one, each time we receive that junk mail.  The mail continues.  Macy’s loves to send their catalogs as to many others. The other most common mail is from charities. My mom liked to shop and apparently give to charities.  In any event I found a website you can go to which should help reduce the junk mail after death.  Here’s the link.   It’s from DMAChoice.org and is the Deceased Do not Contact Registration. It’s basically the do not contact registry for deceased people. I can’t believe I never heard of this before!

Again the link is here.

My best wishes to you.

-John B. Palley

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I am often asked by prospective probate clients if they can serve as co-administrators or co-executors or co-personal representatives. For all practical purposes those three things are the same but the key is the word “CO.”  Co as in two or joint or together. That is usually two siblings want to work together so they can share in the duties.

I have some clients who are currently acting as co-administrators in their father’s probate estate in a California court. They are friends and get along fine as far as I know.  I represent both of them as co-administrators in this matter. Their experience today caused me to make this post.

The main reason I don’t like co-administrators is it requires paperwork to be sent to one and then on to the other as both need to sign many documents throughout the probate case. This is a minor deal but it’s a pain nonetheless.  Other than that it’s really not a huge deal to serve together as co unless they hate each other then it might be worse. I had that case years ago and I won’t get into it but it took about 10 years to finish due to their fighting. LOL!

So today these two went to a very large bank that goes by the initials B of A and was originally called the Bank of Italy. Ok, I’ll tell you they went to a Bank of America or more specifically a Merrill Lynch location. They were told they need proof of independent authority as the aforementioned bank and/or financial institution does not do joint authority.

Soooooooo what should you do if you are thinking about co-administration!?  Well I would think long and hard because what a pain it is if you can’t open an account at the bank you want!

I know another client was able to open a joint probate account at Charles Schwab so that should be an option for you to consider. However, you  might look into this before filing for probate so you are prepared.

Good luck!

-John

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I got a new case recently where the person who died had a Suze Orman will and trust. Let’s just say, in legal terms, it’s all messed up!

Before I go on let me make clear that Suze has a well deserved reputation as a financial guru. She has helped millions of people get their financial houses in order and that’s great.  However, to quote LaVar Ball, “stay in yo’ lane.”  Or as I have heard the kids say, “do what you do.”

Also, let me make this clear this is a public service announcement as I do not do estate planning myself. I am not telling you of these problems so you call me for your estate plan because I don’t do that work. I only clean up messes after death!  So let’s get on with it….

In this case the decedent did not get the house deeded into the trust but they did manage to make the beneficiary of mom’s IRA pay to the trust. This is the exact opposite of what most people (other than people with minor children) want. That is deeding the house to the trust is a key element for avoiding probate which is the main reason most people do a trust.  The IRA beneficiary issue is a loaded gun but basically there are significant tax issues to be considered and I am not sure if Suze went over those with the woman!?

Oh ya, and the trust distributes a lot of the assets to other people, other than the adult children, and it’s not clear if that’s what mom wanted or if the trust was just written poorly. I say this because the language of the trust is not clean. Most people give 100% (or close to it) of their assets to their children and then do a back-up provision to other people.  Then maybe a “disaster clause” if the kids aren’t alive then everything goes to some named people.  In this case there was a specific gift of the house to the children but the next paragraph was a residuary clause which gave all other assets to a bunch of people. That may be what mom wanted but this exacerbates the above issue of the IRA being paid to the trust as two of the beneficiaries live abroad and one is a minor.

In the end we are going to probate court to get the house put into the trust which is what I do for a living. We will utilize a California probate code section 850 “Heggstad” petition which should work since the house was mentioned by address in the trust. However, this will cost the family thousands of dollars… way more than a proper, attorney drafted, trust would have cost in the first place.

The documents, as comically short as they are, do manage to squeeze in a photo of Suze though.  I find that sort of funny.

Oh ya, and another document that a lot of California estate planning attorneys do is a “general transfer” or other intent document which states that the person intended for all their assets to be in the trust.  That can help with after death clean up but I don’t see that document.  Having it makes our Heggstad petition more likely to be approved after death.  So you never want to rely on a general transfer but it is an important document to have in your estate plan.

In conclusion my suggestion is you get your trust done by an experienced estate planning attorney and not Suze Orman.  While a Suze Orman, or other simplistic trust form, might work I think you have a much better chance of success using a highly experienced estate planning attorney.

Good luck to you!  -John

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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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