Lost Will in California Probate

Unfortunately a lot of people misplace their will, and/or trust, before they die.  They know it’s important and thus hire a California estate planning attorney to draft the necessary documents.  After they sign their documents their lawyer often gives them the original to put in a safe place. Then what….

Well, that’s the $64,000 question of course.  Put it in a safe or fire box? Put it in the bank safe deposit box? Leave it with the lawyer?  Give it a friend? There are so many options and thus so many possibilities of where the document might be after death.

If you can’t find a loved one’s will here are some thoughts:

1) Check the real estate records to see if the house is in a trust.  An attorney, with access to title records, can look into this for you.

2) Contact local attorneys and ask if they have a will for the person (best in a small town).

3) Check the probate Court to see a will was filed there.

4) Look through the decedent’s bank records to see if they paid an attorney money.

5) Of course, go through every single document in the house. Look in strange places because I have heard of many stories of wills being found in the most unique places.

If you can’t find a will then consider filing without a will. This works best if you are next of kin of course.

Let’s chat about the process and what your options are!  Contact me.  -John

Share/Bookmark

The ABC’s of ABC… TRUSTS in California

Estate planning attorneys love acronyms.   Or maybe I should say WJLT… we just love them.  AB, ABC, ABCD, Q-TIP, Q-DOT, GRAT, GRUT, CRUT, CRAT, ILIT, GRIT, FLiP, and I could go on and on.  However, the ABC trust is a standard estate planning device and is really pretty simple.

In the simplest terms an ABC trust is a trust that divides into 3 shares at the first spouse’s death. Can you guess what the shares are often called?  Yes, “A Trust,” “B Trust,” and “C Trust.”  Or sometimes “Trust A,” “Trust B,” and “Trust C.”  Or sometimes “Survivors Trust,” “BY-Pass Trust” and “Family Trust.”

The A Trust is completely revocable and amendable by the surviving spouse typically. It’s THEIR money.

The B Trust is IRREVOCABLE (it can NOT be changed) and the provisions differ on how the money pays to the surviving spouse but typically it’s all income with the ability to invade principal for health, education, maintenance and support. The B Trust is included in the taxable estate of the first spouse to die.

The C Trust is also IRREVOCABLE and often has similar provisions to the B Trust.  The C Trust is generally “Q-Tipped” to be included in the surviving spouse’s taxable estate.

More questions on ABC trusts let me know.  -John

Selecting an estate lawyer

I am helping a friend of a friend who needs an attorney in the Long Island, New York area. I contacted a law school classmate, who is in that area, to see if he knew someone out there. That is always my first move when I need to help someone find counsel in another area; contact trusted friends.

However, in this case he can’t help me so what do I do next?  Frankly I probably try to find someone like me.  Small firm, experienced, highly credentialed and friendly.

I start with a web search. I go to websites like avvo.com and lawyers.com which are highly reputable lawyer websites. I look for highly rated attorneys in, or near, that area.  On Avvo.com I like for an attorney who is rated “10.0″ like I am as it’s their highest rating.  On lawyers.com I look for an attorney who is “AV rated” like I am as that is their highest ranking; and, I should add an award that is coveted by attorneys throughout the country.

After that I look at experience.  I have been doing this type of law since 1994 so I look for someone with similar years of experience. There is so much that is learned through the years of practice and is just not taught in law school or continuing education classes. It just takes PRACTICE!

I look for someone with a focused practice. A lot of websites indicate they do wills, trusts, probate and related things and then it goes on to say they also do car accidents, bankruptcy, family law and other things. It’s hard to imagine someone being really good at anything if they practice in that many areas of law.  I practice in estate planning and probate ONLY!

I then try to get a feel for the person by their website.  Does their website look too fancy? Does their office look expensive?  My clients like high quality but affordable legal services. I thus try to find similar when I am referring someone to an attorney in another state. I also look at their personal stuff.  Family person? I am a family person so I think I identify with other family people. The attorney I found today is a 20 year member of his local Rotary club. In my 4 years in Rotary I have found my fellow Rotarians to be very upstanding people and that’s important for a referral!  Again, you can’t teach everything in law school or continuing education classes. Some people are high quality individuals and some people are NOT!

If you want my list of the 7 questions to ask an estate planning or probate attorney BEFORE you hire them just ask.

-John

 

Talking about Death

I did get an A in Professor Kriswell’s pysch class in college but I am certainly no psychologist.  However, after 18 years of doing estate planning I am pretty familiar with the topic of death and dying. I am familiar with common thought patterns, common thoughts and also the divergence of thoughts on the topics of death and dying.  Though a lot of people have similar views there are a lot of people with wide ranges of ideas and thoughts.

I am extra introspective today as I deal with a close friend who is dying. Talking to him about his impending death makes one think even deeper about this already deep topic.

Being able to talk to an estate planning attorney about death and dying is good. It helps make your estate plan, your trust, your wills, your powers of attorney, and the rest of the documents more suited to YOU. Being open about the tough issues makes your documents stronger and it makes your plan better.

However, beyond talking to your lawyer I encourage you to talk to your family. Open up and share with them.  Let them know what you want to happen if you are on life support. Let them know if you want visitors in your final days. Let them know if you want surgeries. Let them know if you want to be cremated or buried. Let them know if you want to have a ceremony, or have certain songs sung, or to make sure certain people are there. LET THEM KNOW!

Telling your lawyer is good but your lawyer might not be contacted until you are dead and scattered at sea. If the lawyer has a document you want to be buried not cremated it would be too late. Let your family know what you want!

-John

FREE California Health Care Directive

No this is not as good as meeting with an attorney and getting a proper document made up. However, if you are in a pinch and need a document fast this should work.  Here is the link to the UCSF Medical Center Advanced Health Care Directive. It would work anywhere in California and probably anywhere in the country. Make your wishes known!

http://www.ucsfhealth.org/pdf/advance_health_care_directive.pdf

Law Practice Administrator after Death or Disability

Selling a business in probate, after death, requires special care. However, when the business is a law practice there are even more rules. This, of course, is due to the interplay between the probate code and the California Bar’s rules of ethics.

If you are a lawyer then you know you can’t split fees with a non-lawyer and you probably guessed your loved one can’t manage your business after death unless they are a lawyer. However, you can appoint a law practice administrator or law practice manager to run your business or sell it after death.  The probate code, at PC 9764 (in full below) lays out the rules.

Additionally, if a law practice administrator is appointed in a trust you can get Court confirmation of that administrator by PC 17200(b)(23) at death OR disability. That code provides as follows,

(23) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a disabled member under Section 2468, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a disabled member shall apply to the petition brought under this section.”

As you have probably guessed by now proper estate planning is crucial to maximize the value of your business!

Let’s talk about YOUR law practice!    -John

 

PROBATE CODE SECTION 9760-9764

9760. (a) As used in this section, “decedent’s business” means an
unincorporated business or venture in which the decedent was engaged
or which was wholly or partly owned by the decedent at the time of
the decedent’s death, but does not include a business operated by a
partnership in which the decedent was a partner.
(b) If it is to the advantage of the estate and in the best
interest of the interested persons, the personal representative, with
or without court authorization, may continue the operation of the
decedent’s business; but the personal representative may not continue
the operation of the decedent’s business for a period of more than
six months from the date letters are first issued to a personal
representative unless a court order has been obtained under this
section authorizing the personal representative to continue the
operation of the business.
(c) The personal representative or any interested person may file
a petition requesting an order (1) authorizing the personal
representative to continue the operation of the decedent’s business
or (2) directing the personal representative to discontinue the
operation of the decedent’s business. The petition shall show the
advantage to the estate and the benefit to the interested persons of
the order requested. Notice of the hearing on the petition shall be
given as provided in Section 1220.
(d) If a petition is filed under this section, the court may make
an order that either:
(1) Authorizes the personal representative to continue the
operation of the decedent’s business to such an extent and subject to
such restrictions as the court determines to be to the advantage of
the estate and in the best interest of the interested persons.
(2) Directs the personal representative to discontinue the
operation of the decedent’s business within the time specified in,
and in accordance with the provisions of, the order.

 

9761. If a partnership existed between the decedent and another
person at the time of the decedent’s death, on application of the
personal representative, the court may order any surviving partner to
render an account pursuant to Section 15510, 15634, or 16807 of the
Corporations Code. An order under this section may be enforced by the
court’s power to punish for contempt.

 

9762. (a) After authorization by order of court upon a showing that
it would be to the advantage of the estate and in the best interest
of the interested persons, the personal representative may continue
as a general or a limited partner in any partnership in which the
decedent was a general partner at the time of death. In its order,
the court may specify any terms and conditions of the personal
representative’s participation as a partner that the court determines
are to the advantage of the estate and in the best interest of the
interested persons, but any terms and conditions that are
inconsistent with the terms of any written partnership agreement are
subject to the written consent of all of the surviving partners.
(b) If there is a written partnership agreement permitting the
decedent’s personal representative to participate as a partner, the
personal representative has all the rights, powers, duties, and
obligations provided in the written partnership agreement, except as
otherwise ordered by the court pursuant to subdivision (a).
(c) If there is not a written partnership agreement, the personal
representative has the rights, powers, duties, and obligations that
the court specifies in its order pursuant to subdivision (a).
(d) To obtain an order under this section, the personal
representative or any interested person shall file a petition showing
that the order requested would be to the advantage of the estate and
in the best interest of the interested persons. Notice of the
hearing on the petition shall be given as provided in Section 1220.
In addition, unless the court otherwise orders, the petitioner, not
less than 15 days before the hearing, shall cause notice of hearing
and a copy of the petition to be mailed to each of the surviving
general partners at his or her last known address.

 

9763. (a) If the decedent was a general partner, the personal
representative may commence and maintain any action against the
surviving partner that the decedent could have commenced and
maintained.
(b) The personal representative may exercise the decedent’s rights
as a limited partner as provided in Section 15675 of the
Corporations Code.

 

9764. (a) The personal representative of the estate of a deceased
attorney who was engaged in a practice of law at the time of his or
her death or other person interested in the estate may bring a
petition for appointment of an active member of the State Bar of
California to take control of the files and assets of the practice of
the deceased member.
(b) The petition may be filed and heard on such notice that the
court determines is in the best interests of the estate of the
deceased member. If the petition alleges that the immediate
appointment of a practice administrator is required to safeguard the
interests of the estate, the court may dispense with notice only if
the personal representative is the petitioner or has joined in the
petition or has otherwise waived notice of hearing on the petition.
(c) The petition shall indicate the powers sought for the practice
administrator from the list of powers set forth in Section 6185 of
the Business and Professions Code. These powers shall be specifically
listed in the order appointing the practice administrator.
(d) The petition shall allege the value of the assets that are to
come under the control of the practice administrator, including, but
not limited by the amount of funds in all accounts used by the
deceased member. The court shall require the filing of a surety bond
in the amount of the value of the personal property to be filed with
the court by the practice administrator. No action may be taken by
the practice administrator unless a bond has been fully filed with
the court.
(e) The practice administrator shall not be the attorney
representing the personal representative.
(f) The court shall appoint the attorney nominated by the deceased
member in a writing, including, but not limited to, the deceased
member’s will, unless the court concludes that the appointment of the
nominated person would be contrary to the best interests of the
estate or would create a conflict of interest with any of the clients
of the deceased member.
(g) The practice administrator shall be compensated only upon
order of the court making the appointment for his or her reasonable
and necessary services. The law practice shall be the source of the
compensation for the practice administrator unless the assets are
insufficient in which case, the compensation of the practice
administrator shall be charged against the assets of the estate as a
cost of administration. The practice administrator shall also be
entitled to reimbursement of his or her costs.
(h) Upon conclusion of the services of the practice administrator,
the practice administrator shall render an accounting and petition
for its approval by the superior court making the appointment. Upon
settlement of the accounting, the practice administrator shall be
discharged and the surety on his or her bond exonerated.
(i) For the purposes of this section, the person appointed to take
control of the practice of the deceased member shall be referred to
as the “practice administrator” and the decedent shall be referred to
as the “deceased member.”

5 California Probate SECRETS

The California probate code does an incredible job of laying out what is needed to be done for a California probate case. The probate code is thick and has incredible details about the most obscure situations. However, there are some things that are not laid out in the probate code:

1) Court Call allows an attorney to appear anywhere: It used to be that you would hire an attorney in the county of the probate action. However, now with the advent of Court Call you can hire the best probate attorney regardless of where they are located. Your attorney can “appear” by telephone and be live in the Court room. This has greatly changed the game and enables you to hire an extremely experienced attorney to conduct your probate throughout California!

2) Probate Referees have some flexibility: The Probate Referee is a state appointed official in each county who is in charge of appraising the assets of a probate estate. They are very good at their job. However, they are just giving an estimate of value in most cases. What is a certain house really worth on a given day? The more information you provide the probate referee the more accurate their numbers will be.

3) Probate Judge Like Peace: No Judge likes to see unnecessary fights, and legal battles, in their courtroom. However, it is my opinion that probate Judges feel even stronger about this by and large. They want harmony and they tend to hate to see people wasting money fighting over mom’s antique desk. They want you to work it out and will do everything they can to help you work it out without a courtroom fight.

4) Probate is like a high hurdle race: Probate is a 7 month race with hurdles throughout. Just like on the track you have to see the hurdle coming and plan ahead. If not you crash into the hurdle!  Having an experienced probate attorney is crucial to planning for each hurdle.

5) Everybody likes to end a probate: In most cases it is advantageous to end the probate as quick as possible; which is generally 7 months. Money is distributed and the family can get on with their lives. Find an attorney who is efficient at keeping a probate moving.

I am happy to share other probate secrets with you if you want to talk about your case.  -John

 

 

Estate Planning and Probate issues for horses and pets

I recently met with a client who has a number of horses. Her family is not interested in them so she wants them to go to a trusted friend and fellow horse lover. We are assigning the “ownership” of the horses to her California revocable living trust. This will help to avoid probate after death. We also are setting up a pet trust with a chunk of money to take care of the horses food, shelter and health care. California law specifically allows for this at California probate code 15212. That section is laid out in full below for your information.

Let me know of any questions you have regarding pet trusts or assigning animals to your living trust.  -John

 

California Probate Code Section 15212

(a) Subject to the requirements of this section, a trust
for the care of an animal is a trust for a lawful noncharitable
purpose. Unless expressly provided in the trust, the trust terminates
when no animal living on the date of the settlor’s death remains
alive. The governing instrument of the animal trust shall be
liberally construed to bring the trust within this section, to
presume against the merely precatory or honorary nature of the
disposition, and to carry out the general intent of the settlor.
Extrinsic evidence is admissible in determining the settlor’s intent.
(b) A trust for the care of an animal is subject to the following
requirements:
(1) Except as expressly provided otherwise in the trust
instrument, the principal or income shall not be converted to the use
of the trustee or to any use other than for the benefit of the
animal.
(2) Upon termination of the trust, the trustee shall distribute
the unexpended trust property in the following order:
(A) As directed in the trust instrument.
(B) If the trust was created in a nonresiduary clause in the
settlor’s will or in a codicil to the settlor’s will, under the
residuary clause in the settlor’s will.
(C) If the application of subparagraph (A) or (B) does not result
in distribution of unexpended trust property, to the settlor’s heirs
under Section 21114.
(3) For the purposes of Section 21110, the residuary clause
described in subparagraph (B) of paragraph (2) shall be treated as
creating a future interest under the terms of a trust.
(c) The intended use of the principal or income may be enforced by
a person designated for that purpose in the trust instrument or, if
none is designated, by a person appointed by a court. In addition to
a person identified in subdivision (a) of Section 17200, any person
interested in the welfare of the animal or any nonprofit charitable
organization that has as its principal activity the care of animals
may petition the court regarding the trust as provided in Chapter 3
(commencing with Section 17200) of Part 5.
(d) If a trustee is not designated or no designated or successor
trustee is willing or able to serve, a court shall name a trustee. A
court may order the transfer of the trust property to a
court-appointed trustee, if it is required to ensure that the
intended use is carried out and if a successor trustee is not
designated in the trust instrument or if no designated successor
trustee agrees to serve or is able to serve. A court may also make
all other orders and determinations as it shall deem advisable to
carry out the intent of the settlor and the purpose of this section.
(e) The accountings required by Section 16062 shall be provided to
the beneficiaries who would be entitled to distribution if the
animal were then deceased and to any nonprofit charitable corporation
that has as its principal activity the care of animals and that has
requested these accountings in writing. However, if the value of the
assets in the trust does not exceed forty thousand dollars ($40,000),
no filing, report, registration, periodic accounting, separate
maintenance of funds, appointment, or fee is required by reason of
the existence of the fiduciary relationship of the trustee, unless
ordered by the court or required by the trust instrument.
(f) Any beneficiary, any person designated by the trust instrument
or the court to enforce the trust, or any nonprofit charitable
corporation that has as its principal activity the care of animals
may, upon reasonable request, inspect the animal, the premises where
the animal is maintained, or the books and records of the trust.
(g) A trust governed by this section is not subject to termination
pursuant to subdivision (b) of Section 15408.
(h) Section 15211 does not apply to a trust governed by this
section.
(i) For purposes of this section, “animal” means a domestic or pet
animal for the benefit of which a trust has been established.

 

California Probate 1, 2, 3….

A California probate is a 7 month, at a minimum, process. Here are 3 key steps:

1) Hire a competent and experienced California probate lawyer and get your petition filed.  In my office we usually have the petition prepared the same day you contact us and tell us to start! It can then be filed, at the Superior Court (Probate Department), within 24 hours.

2) Take care of business during 4 months probate period.  The probate process is 7 months minimum but the main time to take care of business is 4 months. During this time you will notify creditors, gather assets, deal with taxes and determine who the beneficiaries are.

3) End the probate. That’s the light at the end of the tunnel… the end of probate. That’s when the checks are cut! A final report and accounting, or waiver of accounting, is filed with the Court, approved by the Judge and then distribute the assets!

Step one is key, hire a competent probate attorney.  My office handles probates throughout California as we can “appear” in Court telephonically.

 

Estate Planning Process

What does the estate planning process look like in California?  Here is an example of what you might expect:

STEP 1: Find qualified estate planning attorney.  Ask us for our list of 7 questions to ask BEFORE hiring your estate planning attorney if you aren’t sure what to look for in an attorney.

STEP 2: Make appointment with the Law Offices of Meissner, Joseph & Palley, Inc. to see John Palley at his Sacramento office, his Roseville office, on the telephone or on Skype.

STEP 3: Meet with attorney and go over the basics. You, your family, your assets in general. Just general discussion to know what you have and what you want to do with what you have. Possibly get fee quote for legal work that is needed.

STEP 4: Make decision to get living trust, or other estate planning documents, and go through estate planning questionnaire with lawyer.

STEP 5: Receive rough draft from attorney and carefully review it.

STEP 6: Go over questions with attorney.

STEP 7: Sign estate planning documents.

*** STEP 8: Get assets into the trust and/or coordianted with the trust. ****

STEP 9: Put documents in a safe place.

STEP 10: Review your trust occasionally!

Let us know how we can help you with your estate plan.  -John