Get your probate filed

I was recently contacted by a new client who had been trying to get an attorney to file their mom’s probate case for several months. For some reason the attorney has continually delayed getting it done for these people. Most people want to get the probate finished, right? There are two main reasons: 1) the money is not disbursed from your California probate until it’s done and 2) they want to put the death of their loved one behind them and stop being reminded of it every day.  For these, and many other, reasons I like to get probates started soon after death. The sooner you start THE SOONER YOU FINISH!

The probate process in California is 7 months minimum but there is basically no maximum. Thus it is in everybody’s best interest to get the probate process going!

I think working with a qualified California Probate Lawyer is important. Our offices are in the state Capitol of California, Sacramento, but we perform probates throughout California. Contact me, John Palley, so we can discuss your probate case.

-John

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Retirement Plan Contributions in 2012

It’s that time of year… time to start planning for 2012. How will you fund your IRA, 401k, 403b, and other retirement plans in 2012? The rules are not substantially changed. Here is a brief summary to help you. Also, please remember each type of plan has different beneficiary rules so work with a qualified California estate planning attorney to make sure your beneficiary designations are right for you!

The maximum amount you can contribute to a traditional IRA or Roth IRA in 2012 remains at a $5,000 cap which is unchanged from 2011. The maximum catch-up contribution for those age 50 or older remains at $1,000.  You can contribute up to $17,000 into your 401k in 2012 with an additional $5,500 for those in the “catch-up” category (age 50 and older). For simple IRA’s you can contribute $11,500 in 2012 or up to $14,000 if 50 or older.  Of course the contributions limits are subject to how much income you make so bear that in mind.

Also, they have slightly raised the deduction income limits for IRAs but that won’t matter until tax time in April 2013 so I won’t bore you with that now.

Have a great day… and keep funding those retirement accounts!  -John

Now is the TIME to plan!

I have stated before that people have excuses for not preparing their estate plan throughout the year.  Early year it’s “let me get my self organized for the new year and/or pay for the holidays.”  Then it’s, “let’s talk after April 15th.”  So it goes throughout the year until mid-November when apparently the whole world has to stop because of “the holidays.” However, last time I checked people die pretty evenly throughout the year. People get in car crashes throughout the year.  Other stuff happens throughout the year. In fact, I would say winter is probably a time when there are more unexpected deaths due to cold weather, slipping on ice, slippery roads, more people traveling, etc….  However, it’s always, “let’s talk first of the year.”  I already have a few planning appointments made the first week of January for clients who are too busy until then.

How about you make an EARLY new year’s resolution and start your estate plan NOW. In fact, we can still get your plan done THIS YEAR if you start now.  Why not!? It’s not that difficult.  Come in this week and we will talk about you, your family and your assets. I will get you a rough draft next week, you’ll review it and get back to me with questions, and then we can sign it the following week. We can be done before mid-December!

Contact me to set up an appointment and get your California estate plan started by a Certified Specialist in Estate Planning, Trust and Probate law!

-John

Seminar Trusts

I saw an ad in the Sacramento Bee today for an upcoming series of living trust seminars. It hits on so many key points: don’t let the Court’s decide your estate plan, wills do NOT avoid probate, keep your affairs private and out of the courts, be careful of joint tenancy ownership, learn how to reduce or eliminate taxes, how guardianships work, making provisions for your grandchildren, and what happens without a living trust. These are all great topics and it’s FREE!  WOW!  That’s incredible.  It even says that all new clients will get a consultation with a “qualified attorney.”

As a true estate planning professional I am a bit dismayed by the advertisement as I do living trust seminars for my clients, one-on-one, in my office and we talk about the issues that matter most to YOU.  Plus, I can almost guarantee their version of a “qualified attorney” does not include someone with my credentials:

- Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization;

- AV Rated (the highest rating) by Martindale Hubbell (Lawyers.com);

- 10.0 rating (the highest rating) by AVVO.com

- Past Sacramento Bee Estate Planning and Probate “Expert;”

- Been practicing in this area of law since 1994.

However, that’s just part of it… what’s more… read the small print at the bottom of that “free” seminar ad and you learn what their real business is. “An independent licensed Notary Public, who may be a licensed insurance agent, will deliver your documents when completed.”

Ok, let me assure you that if you are a possible annuity purchaser target the notary WILL BE a licensed insurance salesmen!  See the fact is these seminars are not really to do living trusts but usually aimed to sell you very high commissioned annuities.  When they get to your house they will likely be the old school, bad polyester suit, won’t take no for an answer, kind of of insurance salesmen. If you need an annuity then work with a high quality financial professional. If you need a living trust work with a high quality estate planning attorney.

I do not sell annuities or any investments. I am just an attorney. There is no conflict of interest when you work with a true estate planning professional.

Be careful about these seminars. If you want a free estate planning seminar contact me and very likely I can give you a one-on-one estate planning seminar in my office that is tailored for YOU!

Contact Me with any questions you have.  -John

Sign That Estate Plan

I met with a client the other day who couldn’t decide who should get some items of personal property in their wills.  Curio cabinet, guns, etc….  Now, I am a sentimental guy and I have many “treasures” at home but I think a lot of us get mis-directed by these small valued items. In this case the clients are disinheriting their children and given their money to many charities; mostly animal charities. This is noble and I am glad for them as it is clear they love their animals.  However, at this point they have unsigned wills so all their assets will go to their kids rather than the animal charities… and all because they can’t decide about the curio cabinet!  I will acknowledge I got a little mad at them.  I told them they need to decide who gets the curio cabinet and sign their wills.  I explained that if their feelings are really that strong about disinheriting their kids, in favor of the animal charities, then they need to take action!

The fact is that unsigned estate planning documents such as wills, trusts and powers of attorney are IN-EFFECTIVE if they are not properly signed.  It looks good on paper but if it’s not signed it’s WORTHLESS!

Don’t procrastinate. Get your documents signed and then change them if you want. As a client once told me, “it’s never going to be 100% perfect.”  He’s right. There are always things that change so get it done and then update it when things change!

-John

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Funeral Arrangements

Up until the funeral my family has been planning the last week I never worried too much about putting my exact wishes down in writing. However, after seeing the costs involved and also the variety of decisions that can be made I am much more inclined to put my own wishes in writing. If nothing else, it will make things easier for my family. You can do this in your estate plan and I encourage you to do so.

I have been an estate planning attorney since 1994 and have prepared hundreds, and probably over 1,000, estate plans. I have talked to clients about a whole host of end of life decisions, life support, organ donation, cremation, burial, what cemetery, where to scatter ashes, and the list goes on and on.  I have had clients tell me what songs should be played at their funeral, who should officiate, and even had one client tell me a couple of public officials who were specifically NOT allowed to attend their funeral.

The cost to bury my wife’s grandmother was much more than I realized between the plot, the coffin, opening the hole, filling the hole back in, etc….  Ok, that’s easy, I have told my wife to CREMATE ME PLEASE! I should add that to my will and I will do so soon.  I don’t have a strong feeling one way or the other, between burial and cremation, so just cremate me.

Oh ya, I really want to be an organ donor. I once had the pleasure of visiting a friend’s young baby at the hospital after they had received major organ donations. The kid had a “zipper” up his whole front side from the surgery. You know what, that was one of the most moving things I have ever seen. Yes, use all my organs! I am not ready to give my body to science, as some plan for, but I am ready to donate to save a life!

Ok, what about the funeral itself!?  Well, that’s more personal, and almost comedic, so I won’t post here. However, if you are a client, and ask me about it, I will tell you! I am thinking specifics about food, location, number of attendees, obituary information, etc…. I am not normally a control freak, as far as I know, but I am feeling more control-freakish on this issue now. Most as well go out how I want, right!?

Anyway, the point of this post is that YOU can write down all your wishes in an official legal document to increase the chances of it happening how you want. It would be my pleasure to talk with you about the issues and even refer to experts (mortuaries and cemeteries) if you want to plan some of that.

I look forward to talking to you.  -John

Paying for the funeral

So you have just lost a loved one and now you have to figure out how to pay the mortuary, the cemetery, the church, the musician, the newspaper for the obituary, and maybe even a nice reception after the funeral… but who pays for all that?  I have been faced with this issue personally the last week as my wife’s grandma passed away.  Though she had pre-paid for her cemetery plot it turns out that was only half the battle… actually, not even half. Luckily various family members were able to pay for different things so it’s all working out just fine. However, what if you can’t afford it? What can you do?

Let’s say the person that died had money in the bank but you can’t access it. Maybe there is $30,000 sitting there. You have seen the bank statement and know it’s there. However, the bank won’t give it to you because they aren’t allowed to.  In some cases I can help structure a deal with some of the people owed money but not always. In the cases where we can’t convince them to be paid once probate is started what can you do?  One possibility is petitioning the Court, in an “ex parte” fashion, to release funds from the bank account to pay the funeral costs.  Since funerals are priority costs to be paid the Court should be friendly to this.

Filing ex parte means going in to Court on an emergency or “rush” basis to get something done.  Most Courts have procedures of what time of day you can show up to get an ex parte matter heard. In some counties you call the day before to get on the calendar.  There are likely notice requirements; that is, you telephoning all the players that you are going to Court the next morning to ask for money.  It’s a complicated petition and procedure and thus it should be handled by an experienced probate attorney.

Absent that, the more common approach is that everybody chips in what they can and then are paid back once probate is going.  Letters are usually issued by the Court at the first Court date and most Court dates are given about 6 weeks after the probate petition is filed. So this is one more good reason to get your probate started!  Once letters issue the Personal Representative can access the bank account and pay back the funeral funds. This includes all reasonably related things like obituaries, flowers, etc….

Contact Me with questions.  -John

Probate Accountings

Though I prefer when clients give me organized accountings showing receipts (income, interest, rent, dividends, etc.) and disbursements (money spent) I am ok getting a pile of papers too. I can usually sort them out without having to hire an accountant and usually as part of the California probate process. That is, usually without additional attorney fees!

Contact Me to discuss your probate accounting!  -John

Probate Referees

The probate referee is a state appointed official whose job it is to appraise most assets in a probate estate. In fact, it is mandatory that they appraise most assets in a full probate estate.  A probate referee is a state appointed official who is appointed to serve the state by the California State Controller. There is at least one probate referee for each county while some of the larger counties have many.  Typically the Court appoints a probate referee for each probate case in some systematic fashion.

The probate referee appraises all property and assets except cash. Thus, the Personal Representative can “appraise” cash in the bank by asking the bank for the “date of death” value of the account. All other assets the probate referee will appraise. This includes many assets that are very easy to appraise with various on-line resources like kbb.com. However, it remains their job to appraise the non-cash assets. In some cases the PR has to help the referee by getting more information for certain hard to appraise items like jewelry. In fact, in some cases photos and an appraisal from a jeweler will be provided to the probate referee.

I have pasted below many relevant probate code sections.

Feel free to ask any questions that arise.  -John

 

CALIFORNIA PROBATE CODES RELATED TO PROBATE REFEREES

400.  (a) The Controller shall appoint at least one person in each
county to act as a probate referee for the county.
(b) If there are fewer than three qualified applicants to serve in
a county, the Controller may designate a probate referee from
another county or make an interim appointment, to serve until the
vacancy has been filled by a qualified applicant.

401.  (a) Appointment shall be from among persons passing a
qualification examination. A person who passes the examination is
eligible for appointment for a period of five years from the date of
the examination.
(b) Appointment shall be on the basis of merit without regard to
sex, race, religious creed, color, national origin, ancestry, marital
status, or political affiliation.

402.  (a) The qualification examination for applicants for
appointment to act as a probate referee shall be held at times and
places within the state determined by the Controller.
(b) The Controller may contract with another agency to administer
the qualification examination. Administration of the examination
shall include:
(1) Development of standards for passage of the examination.
(2) Preparation of examination questions.
(3) Giving the examination.
(4) Scoring the examination.
(c) Each applicant shall pay a fee for taking the qualification
examination. The agency administering the examination shall transmit
to the Controller a list of candidates who have received a passing
score in the examination. The list is a public record.

403.  (a) The term of office of a probate referee is four years,
expiring June 30. A person may be appointed to complete the unexpired
term of office of a probate referee whose appointment is revoked or
is otherwise terminated. For a period of five years from the date of
expiration of the term of office, a person who had been appointed to
act as a probate referee is eligible for reappointment.
(b) If the Controller increases the number of probate referees in
a county, the Controller shall stagger the terms of the new
appointees so that one-quarter, or as close to one-quarter as
possible, of the terms of the probate referees in that county expire
on June 30 of each succeeding year.

404.  (a) The Controller shall establish and may amend standards of
training, performance, and ethics of probate referees. The standards
are a public record.
(b) The Controller may revoke the appointment of a person to act
as a probate referee for noncompliance with any standard of training,
performance, or ethics established under subdivision (a). The
Controller may revoke an appointment under this subdivision without
notice or a hearing, but the revocation is subject to review by writ
of mandate in a court of competent jurisdiction.

405.  Notwithstanding Section 404, the Controller may, at the
Controller’s pleasure, revoke the appointment of a person to act as a
probate referee. Under this section, the Controller may revoke the
appointment of not more than 10 percent of the probate referees in
each county in any one calendar year, but may revoke the appointment
of at least one probate referee in each county in any one calendar
year.

406.  (a) The authority of a person to act as a probate referee
ceases immediately upon expiration of the person’s term of office,
revocation of the person’s appointment, or other termination pursuant
to law.
(b) Upon cessation of authority of a person to act as a probate
referee, the Controller shall notify the superior court of the county
for which the probate referee was appointed. Upon receipt of notice,
or if it otherwise comes to the attention of the court that the
authority of a person to act as a probate referee has ceased, the
court shall reassign any estate for which the person had been
designated as probate referee to another probate referee.

407.  (a) As used in this section, “prohibited political activity”
means directly or indirectly soliciting, receiving, or contributing,
or being in any manner involved in soliciting, receiving, or
contributing, any of the following:
(1)  An assessment, subscription, or contribution to any party,
incumbent, committee, or candidate exceeding two hundred dollars
($200) in any one calendar year for any partisan public office of
this state.
(2) An assessment, subscription, contribution, or political
service in any amount for any campaign for the office of Controller.
(b) Upon a person’s appointment and thereafter in January of each
year during the person’s tenure as a probate referee, the person
shall file with the Controller a verified statement indicating
whether the person has engaged in prohibited political activity
during the preceding two calendar years.
(c) The Controller may not appoint or reappoint as a probate
referee a person who within the preceding two calendar years has
engaged in prohibited political activity, and any such appointment or
reappointment is void and shall be revoked. The Controller shall
revoke the appointment of a person who, during the person’s tenure as
a probate referee, engages in prohibited political activity.
However, all acts not otherwise invalid, performed by the person
before revocation of the person’s appointment, are valid.
(d) A person shall not engage in prohibited political activity
during the time the person is an applicant for appointment or
reappointment, or during the person’s tenure as a probate referee. A
violation of this subdivision is a misdemeanor.
(e) Subdivisions (a), (c), and (d) do not apply to any prohibited
political activity that occurred before July 1, 1989, and the
applicable law in effect before July 1, 1989, continues to apply.
Subdivision (b) applies on July 1, 1989, to persons who apply for
appointment on or after July 1, 1989. A person who applied for
appointment or who was appointed before July 1, 1989, shall file the
first statement required by subdivision (b) on or before July 1,
1989, and thereafter as prescribed in subdivision (b).

408.  The appointment of a probate referee by the Controller before
July 1, 1989, is not invalidated by the repeal of the law under which
the appointment was made. Appointment of a probate referee before
July 1, 1989, may be revoked under this chapter only if revocation
would otherwise be proper under this chapter.

450.  Upon designation by the court, the probate referee has all the
powers of a referee of the superior court and all other powers
provided in this chapter.
451.  (a) For the purpose of appraisal of property in the estate,
the probate referee may require, and may issue a subpoena to compel,
the appearance before the referee of the personal representative,
guardian, conservator, or other fiduciary, an interested person, or
any other person the referee has reason to believe has knowledge of
the property.
(b) A subpoena issued under subdivision (a) is subject to the
provisions of Chapter 6 (commencing with Section 2020.010) of Title 4
of Part 4 of the Code of Civil Procedure governing deposition
subpoenas.

452.  (a) The probate referee may:
(1) Examine and take the testimony under oath of a person
appearing before the referee.
(2) Require, and issue a subpoena to compel, the person to produce
any document in the person’s possession or control, concerning the
value of any property in the estate.
(b) A subpoena issued under subdivision (a) is subject to the
provisions of Chapter 6 (commencing with Section 2020.010) of Title 4
of Part 4 of the Code of Civil Procedure governing deposition
subpoenas.

453.  (a) On petition of a person required to appear before the
probate referee pursuant to this chapter, the court may make a
protective order to protect the person from annoyance, embarrassment,
or oppression. The petitioner shall mail notice of the hearing on
the petition to the probate referee and to the personal
representative, guardian, conservator, or other fiduciary at least 15
days before the date set for the hearing. Any subpoena issued by the
probate referee is stayed during the pendency of the petition.
(b) On petition of the probate referee, the court may make an
order to show cause why a person who is required, but fails, to
appear before the probate referee pursuant to this chapter, should
not be compelled to do so. The probate referee shall mail notice of
the hearing on the petition to the person at least 15 days before the
date set for the hearing.

8900.  The appraisal of property in the inventory shall be made by
the personal representative, probate referee, or independent expert
as provided in this chapter.

8901.  The personal representative shall appraise the following
property, excluding items whose fair market value is, in the opinion
of the personal representative, an amount different from the face
value of the property:
(a) Money and other cash items. As used in this subdivision, a
“cash item” is a check, draft, money order, or similar instrument
issued on or before the date of the decedent’s death that can be
immediately converted to cash.
(b) The following checks issued after the date of the decedent’s
death:
(1) Checks for wages earned before death.
(2) Refund checks, including tax and utility refunds, and
Medicare, medical insurance, and other health care reimbursements and
payments.
(c) Accounts (as defined in Section 21) in financial institutions.
(d) Cash deposits and money market mutual funds, as defined in
subdivision (b) of Section 9730, whether in a financial institution
or otherwise, including a brokerage cash account. All other mutual
funds, stocks, bonds, and other securities shall be appraised
pursuant to Sections 8902 to 8909, inclusive.
(e) Proceeds of life and accident insurance policies and
retirement plans and annuities payable on death in lump sum amounts.

8902.  Except as otherwise provided by statute:
(a) The personal representative shall deliver the inventory to the
probate referee designated by the court, together with necessary
supporting data to enable the probate referee to make an appraisal of
the property in the inventory to be appraised by the probate
referee.
(b) The probate referee shall appraise all property other than
that appraised by the personal representative.

8903.  (a) The court may, for good cause, waive appraisal by a
probate referee in the manner provided in this section.
(b) The personal representative may apply for a waiver together
with the petition for appointment of the personal representative or
together with another petition, or may apply for a waiver in a
separate petition filed in the administration proceedings, but the
application may not be made later than the time the personal
representative delivers the inventory to the probate referee, if a
probate referee has been designated. A copy of the proposed inventory
and appraisal and a statement that sets forth the good cause that
justifies the waiver shall be attached to the petition.
(c) The hearing on the waiver shall be not sooner than 15 days
after the petition is filed. Notice of the hearing on the petition,
together with a copy of the petition and a copy of the proposed
inventory and appraisal, shall be given as provided in Section 1220
to all of the following persons:
(1) Each person listed in Section 1220.
(2) Each known heir whose interest in the estate would be affected
by the waiver.
(3) Each known devisee whose interest in the estate would be
affected by the waiver.
(4) The Attorney General, at the office of the Attorney General in
Sacramento, if any portion of the estate is to escheat to the state
and its interest in the estate would be affected by the waiver.
(5) The probate referee, if a probate referee has been designated.
(d) A probate referee to whom notice is given under this section
may oppose the waiver. If the opposition fails and the court
determines the opposition was made without substantial justification,
the court shall award litigation expenses, including reasonable
attorney’s fees, against the probate referee. If the opposition
succeeds, the court may designate a different probate referee to
appraise property in the estate.
(e) If the petition is granted, the inventory and appraisal
attached to the petition shall be filed pursuant to Section 8800.

8904.  (a) A unique, artistic, unusual, or special item of tangible
personal property that would otherwise be appraised by the probate
referee may, at the election of the personal representative, be
appraised by an independent expert qualified to appraise the item.
(b) The personal representative shall make the election provided
in subdivision (a) by a notation on the inventory delivered to the
probate referee indicating the property to be appraised by an
independent expert. The probate referee may, within five days after
delivery of the inventory, petition for a court determination whether
the property to be appraised by an independent expert is a unique,
artistic, unusual, or special item of tangible personal property. If
the petition fails and the court determines that the petition was
made without substantial justification, the court shall award
litigation expenses, including reasonable attorney’s fees, against
the probate referee.

8905.  A person who appraises property, whether a personal
representative, probate referee, or independent expert, shall sign
the appraisal as to property appraised by that person, and shall take
and subscribe an oath that the person has truly, honestly, and
impartially appraised the property to the best of the person’s
ability.

8906.  (a) At any time before the hearing on the petition for final
distribution of the estate, the personal representative or an
interested person may file with the court a written objection to the
appraisal.
(b) The clerk shall fix a time, not less than 15 days after the
filing, for a hearing on the objection.
(c) The person objecting shall give notice of the hearing,
together with a copy of the objection, as provided in Section 1220.
If the appraisal was made by a probate referee, the person objecting
shall also mail notice of the hearing and a copy of the objection to
the probate referee at least 15 days before the date set for the
hearing.
(d) The person objecting to the appraisal has the burden of proof.
(e) Upon completion of the hearing, the court may make any orders
that appear appropriate. If the court determines the objection was
filed without reasonable cause or good faith, the court may order
that the fees of the personal representative and attorney and any
costs incurred for defending the appraisal be made a charge against
the person filing the objection.

8907.  Neither the personal representative nor the attorney for the
personal representative is entitled to receive compensation for
extraordinary services by reason of appraising any property in the
estate.

8908.  A probate referee who appraises property in the estate shall,
upon demand by the personal representative or by a beneficiary:
(a) Provide any appraisal report or backup data in the possession
of the probate referee used by the referee to appraise an item of
property. The probate referee shall not disclose any information that
is required by law to be confidential. The probate referee shall
provide the appraisal report or backup data without charge. The cost
of providing the appraisal report or backup data shall not be allowed
as an expense of appraisal but is included in the commission for
services of the probate referee.
(b) Justify the appraisal of an item of property if the appraisal
is contested, whether by objection pursuant to Section 8906, by tax
audit, or otherwise. The probate referee may be entitled to an
additional fee for services provided to justify the appraisal, to be
agreed upon by the personal representative or beneficiary and
referee. If the personal representative or beneficiary and the
probate referee are unable to agree, the court shall determine what
fee, if any, is appropriate.

8909.  A probate referee who appraises property in an estate shall
retain possession of all appraisal reports and backup data used by
the referee to appraise the property for a period of three years
after the appraisal is filed. The probate referee shall, during the
three-year period, offer the personal representative the reports and
data used by the referee to appraise the property and deliver the
reports and data to the personal representative on request. Any
reports and data not requested by the personal representative may be
destroyed at the end of the three-year period without further notice.

8920.  The probate referee, when designated by the court, shall be
among the persons appointed by the Controller to act as a probate
referee for the county. If there is no person available who is able
to act or if, pursuant to authority of Section 8922 or otherwise, the
court does not designate a person appointed for the county, the
court may designate a probate referee from another county.

8921.  The court may designate a person requested by the personal
representative as probate referee, on a showing by the personal
representative of good cause for the designation. The following
circumstances are included within the meaning of good cause, as used
in this section:
(a) The probate referee has recently appraised the same property
that will be appraised in the administration proceeding.
(b) The probate referee will be making related appraisals in
another proceeding.
(c) The probate referee has recently appraised similar property in
another proceeding.

8922.  The court has authority and discretion not to designate a
particular person as probate referee even though appointed by the
Controller to act as a probate referee for the county.

8923.  The court may not designate as probate referee any of the
following persons:
(a) The court clerk.
(b) A partner or employee of the judge or commissioner who orders
the designation.
(c) The spouse of the judge or commissioner who orders the
designation.
(d) A person, or the spouse of a person, who is related within the
third degree either (1) to the judge or commissioner who orders the
designation or (2) to the spouse of the judge or commissioner who
orders the designation.

8924.  (a) The court shall remove the designated probate referee in
any of the following circumstances:
(1) The personal representative shows cause, including
incompetence or undue delay in making the appraisal, that in the
opinion of the court warrants removal of the probate referee. The
showing shall be made at a hearing on petition of the personal
representative. The personal representative shall mail notice of the
hearing on the petition to the probate referee at least 15 days
before the date set for the hearing.
(2) The personal representative has the right to remove the first
probate referee who is designated by the court. No cause need be
shown for removal under this paragraph. The personal representative
may exercise the right at any time before the personal representative
delivers the inventory to the probate referee. The personal
representative shall exercise the right by filing an affidavit or
declaration under penalty of perjury with the court and mailing a
copy to the probate referee. Thereupon, the court shall remove the
probate referee without any further act or proof.
(3) Any other cause provided by statute.
(b) Upon removal of the probate referee, the court shall designate
another probate referee in the manner prescribed in Section 8920.
8940.  (a) The probate referee shall promptly and with reasonable
diligence appraise the property scheduled for appraisal by the
probate referee in the inventory that the personal representative
delivers to the referee.
(b) The probate referee shall, not later than 60 days after
delivery of the inventory, do one of the following:
(1) Return the completed appraisal to the personal representative.
(2) Make a report of the status of the appraisal. The report shall
show the reason why the property has not been appraised and an
estimate of the time needed to complete the appraisal. The report
shall be delivered to the personal representative and filed with the
court.
8941.  (a) The court shall, on petition of the personal
representative or probate referee, or may, on the court’s own motion,
hear the report of the status of the appraisal. The court may issue
a citation to compel the personal representative or the probate
referee to attend the hearing.
(b) If the probate referee does not make the report of the status
of the appraisal within the time required by this article or
prescribed by the court, the court shall, on petition of the personal
representative or may, on its own motion, cite the probate referee
to appear before the court and show the reason why the property has
not been appraised.
(c) Upon the hearing, the court may order any of the following:
(1) That the appraisal be completed within a time that appears
reasonable.
(2) That the probate referee be removed. Upon removal of the
probate referee the court shall designate another probate referee in
the manner prescribed in Section 8920.
(3) That the commission of the probate referee be reduced by an
amount the court deems appropriate, regardless of whether the
commission otherwise allowable under the provisions of Sections 8960
to 8964 would be reasonable compensation for the services rendered.
(4) That the personal representative deliver to the probate
referee all information necessary to allow the probate referee to
complete the appraisal. Failure to comply with such an order is
grounds for removal of the personal representative.
(5) Such other orders as may be appropriate.

8960.  (a) The commission and expenses provided by this article as
compensation for the services of the probate referee shall be paid
from the estate.
(b) The probate referee may not withhold the appraisal until the
commission and expenses are paid, but shall deliver the appraisal to
the personal representative promptly upon completion.
(c) The commission and expenses of the probate referee are an
expense of administration, entitled to the priority for payment
provided by Section 11420, and shall be paid in the course of
administration.
8961.  As compensation for services the probate referee shall
receive all of the following:
(a) A commission of one-tenth of one percent of the total value of
the property for each estate appraised, subject to Section 8963. The
commission shall be computed excluding property appraised by the
personal representative pursuant to Section 8901 or by an independent
expert pursuant to Section 8904.
(b) Actual and necessary expenses for each estate appraised. The
referee shall file with, or list on, the inventory and appraisal a
verified account of the referee’s expenses.

8963.  (a) Notwithstanding Section 8961 and subject to subdivision
(b), the commission of the probate referee shall in no event be less
than seventy-five dollars ($75) nor more than ten thousand dollars
($10,000) for any estate appraised.
(b) Upon application of the probate referee, the court may allow a
commission in excess of ten thousand dollars ($10,000) if the court
determines that the reasonable value of the referee’s services
exceeds that amount. Notice of the hearing under this subdivision
shall be given as provided in Section 1220 to all of the following
persons:
(1) Each person listed in Section 1220.
(2) Each known heir whose interest in the estate would be affected
by the petition.
(3) Each known devisee whose interest in the estate would be
affected by the petition.
(4) The Attorney General, at the office of the Attorney General in
Sacramento, if any portion of the estate is to escheat to the state
and its interest in the estate would be affected by the petition.
(5) Each person who has requested special notice of petitions
filed in the proceeding.
8964.  If more than one probate referee appraises or participates in
the appraisal of property in the estate, each is entitled to the
share of the commission agreed upon by the referees or, absent an
agreement, that the court allows. In no case shall the total
commission for all referees exceed the maximum commission that would
be allowable for a single referee.

Attorney as Trustee

I met with a client last week who really wants to name me as their trustee when they can no longer function in that capacity (beit by death or incapacity). This is not work we actively seek out but we are generally happy to help clients who desire this. I have gone over so many different trustee options with the client but they insist. I discussed options including: family member, trusted friend, professional fiduciary, bank, another attorney, CPA, and bookkeeper. However, they really want me.

In cases where we take this positions we advise our clients of the provisions of California Probate Code 15642 (pasted below). The problem is that an attorney who drafts the document is presumed to be in a position to get themselves named as trustee. Although, in our firm, it’s quite the opposite the protections of the California probate code still apply. Thus we advise our clients to get a certificate of independent review where another attorney, preferably one not a part of our firm, meets with the client to confirm their wishes. You can see what a certificate of independent review looks like below in the pasted California probate code sections.  Contact me with questions about this or any other trust or estate situation you have in California.  -John

PROBATE CODE
SECTION 15640-15645

15640.  A trustee who has accepted the trust may resign only by one
of the following methods:
(a) As provided in the trust instrument.
(b) In the case of a revocable trust, with the consent of the
person holding the power to revoke the trust.
(c) In the case of a trust that is not revocable, with the consent
of all adult beneficiaries who are receiving or are entitled to
receive income under the trust or to receive a distribution of
principal if the trust were terminated at the time consent is sought.
If a beneficiary has a conservator, the conservator may consent to
the trustee’s resignation on behalf of the conservatee without
obtaining court approval. Without limiting the power of the
beneficiary to consent to the trustee’s resignation, if the
beneficiary has designated an attorney in fact who has the power
under the power of attorney to consent to the trustee’s resignation,
the attorney in fact may consent to the resignation.
(d) Pursuant to a court order obtained on petition by the trustee
under Section 17200. The court shall accept the trustee’s resignation
and may make any orders necessary for the preservation of the trust
property, including the appointment of a receiver or a temporary
trustee.

15641.  The liability for acts or omissions of a resigning trustee
or of the sureties on the trustee’s bond, if any, is not released or
affected in any manner by the trustee’s resignation.

15642.  (a) A trustee may be removed in accordance with the trust
instrument, by the court on its own motion, or on petition of a
settlor, cotrustee, or beneficiary under Section 17200.
(b) The grounds for removal of a trustee by the court include the
following:
(1) Where the trustee has committed a breach of the trust.
(2) Where the trustee is insolvent or otherwise unfit to
administer the trust.
(3) Where hostility or lack of cooperation among cotrustees
impairs the administration of the trust.
(4) Where the trustee fails or declines to act.
(5) Where the trustee’s compensation is excessive under the
circumstances.
(6) Where the sole trustee is a person described in subdivision
(a) of Section 21350 or subdivision (a) of Section 21380, whether or
not the person is the transferee of a donative transfer by the
transferor, unless, based upon any evidence of the intent of the
settlor and all other facts and circumstances, which shall be made
known to the court, the court finds that it is consistent with the
settlor’s intent that the trustee continue to serve and that this
intent was not the product of fraud or undue influence. Any waiver by
the settlor of this provision is against public policy and shall be
void. This paragraph shall not apply to instruments that became
irrevocable on or before January 1, 1994. This paragraph shall not
apply if any of the following conditions are met:
(A) The settlor is related by blood or marriage to, or is a
cohabitant with, any one or more of the trustees, the person who
drafted or transcribed the instrument, or the person who caused the
instrument to be transcribed.
(B) The instrument is reviewed by an independent attorney who (1)
counsels the settlor about the nature of his or her intended trustee
designation and (2) signs and delivers to the settlor and the
designated trustee a certificate in substantially the following form:

“CERTIFICATE OF INDEPENDENT REVIEW
I, _______________________________, have reviewed
(attorney’s name)
____________________and have counseled my client,
(name of instrument)
__________, fully and privately on the nature and
(name of client)
legal effect of the designation as trustee of ___
(name of trustee)
contained in that instrument. I am so
disassociated from the interest of the person
named as trustee as to be in a position to
advise my client impartially and confidentially
as to the consequences of the designation. On
the basis of this counsel, I conclude that the
designation of a person who would otherwise be
subject to removal under paragraph (6) of
subdivision (b) of Section 15642 of the Probate
Code is clearly the settlor’s intent and that
intent is not the product of fraud or undue
influence.
____________________________ ___________________”
(Name of Attorney)           (Date)

This independent review and certification may occur either before
or after the instrument has been executed, and if it occurs after the
date of execution, the named trustee shall not be subject to removal
under this paragraph. Any attorney whose written engagement signed
by the client is expressly limited to the preparation of a
certificate under this subdivision, including the prior counseling,
shall not be considered to otherwise represent the client.
(C) After full disclosure of the relationships of the persons
involved, the instrument is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4.
(7) If, as determined under Part 17 (commencing with Section 810)
of Division 2, the trustee is substantially unable to manage the
trust’s financial resources or is otherwise substantially unable to
execute properly the duties of the office. When the trustee holds the
power to revoke the trust, substantial inability to manage the trust’
s financial resources or otherwise execute properly the duties of the
office may not be proved solely by isolated incidents of negligence
or improvidence.
(8) If the trustee is substantially unable to resist fraud or
undue influence. When the trustee holds the power to revoke the
trust, substantial inability to resist fraud or undue influence may
not be proved solely by isolated incidents of negligence or
improvidence.
(9) For other good cause.
(c) If, pursuant to paragraph (6) of subdivision (b), the court
finds that the designation of the trustee was not consistent with the
intent of the settlor or was the product of fraud or undue
influence, the person being removed as trustee shall bear all costs
of the proceeding, including reasonable attorney’s fees.
(d) If the court finds that the petition for removal of the
trustee was filed in bad faith and that removal would be contrary to
the settlor’s intent, the court may order that the person or persons
seeking the removal of the trustee bear all or any part of the costs
of the proceeding, including reasonable attorney’s fees.
(e) If it appears to the court that trust property or the
interests of a beneficiary may suffer loss or injury pending a
decision on a petition for removal of a trustee and any appellate
review, the court may, on its own motion or on petition of a
cotrustee or beneficiary, compel the trustee whose removal is sought
to surrender trust property to a cotrustee or to a receiver or
temporary trustee. The court may also suspend the powers of the
trustee to the extent the court deems necessary.
(f) For purposes of this section, the term “related by blood or
marriage” shall include persons within the seventh degree.

 

15643.  There is a vacancy in the office of trustee in any of the
following circumstances:
(a) The person named as trustee rejects the trust.
(b) The person named as trustee cannot be identified or does not
exist.
(c) The trustee resigns or is removed.
(d) The trustee dies.
(e) A conservator or guardian of the person or estate of an
individual trustee is appointed.
(f) The trustee is the subject of an order for relief in
bankruptcy.
(g) A trust company’s charter is revoked or powers are suspended,
if the revocation or suspension is to be in effect for a period of 30
days or more.
(h) A receiver is appointed for a trust company if the appointment
is not vacated within a period of 30 days.
15644.  When a vacancy has occurred in the office of trustee, the
former trustee who holds property of the trust shall deliver the
trust property to the successor trustee or a person appointed by the
court to receive the property and remains responsible for the trust
property until it is delivered. A trustee who has resigned or is
removed has the powers reasonably necessary under the circumstances
to preserve the trust property until it is delivered to the successor
trustee and to perform actions necessary to complete the resigning
or removed trustee’s administration of the trust.

 

15645.  If the trustee of a trust that is not revocable has refused
to transfer administration of the trust to a successor trust company
on request of the beneficiaries described in subdivision (c) of
Section 15640 and the court in subsequent proceedings under Section
17200 makes an order removing the existing trustee and appointing a
trust company as successor trustee, the court may, in its discretion,
award costs and reasonable attorney’s fees incurred by the
petitioner in the proceeding to be paid by the trustee or from the
trust as ordered by the court.