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Why don’t attorneys return my call?

It has been said to me by many a client, “it is truly a breath of fresh air how fast you reply to emails and phone calls… thank you.” They often then say something like other attorneys don’t even call them back to schedule an initial appointment or call them back once they are the attorney of record… thus the age old question, “why don’t attorneys return my call?”

I hate to make excuses for my brethren so I won’t. Yes attorneys are busy but, you know what, so are most people. Life is busy.  Do attorneys really think they are busier than others?

I have heard attorneys say their time is valuable.  Yes, our time has value but it’s value comes from clients who hire us and happy clients who refer us to their friends and family. If we act like our time is more valuable than others I think we create a chasm between us and our clients. All of us have a similar time on this earth and thus, ultimately, all of our time has a similar ultimate value. You and your time deserve to be treated with respect just like I expect people to respect me and my time. We are all in this together.  Find an attorney who wants to work WITH you!

The bottom line is, however, that attorneys are just not good at creating systems nor are they generally good at prioritizing what’s important. Systems start from the minute you call an organized law office. Your call will be routed directly to me if I am available and if I am not then to my probate paralegal, Danielle.  One of us is usually available. You want answers to your California probate questions and we want to help give you those answers.

From there our systems continue. We know that most people who have lost a loved one want to talk about the probate process as quickly as possible. On the phone or in person you want answers. Once you have the answers, assuming you have to go to probate court, you probably want to file as quickly as possible. You don’t want to wait two weeks for the first appointment and you don’t want the attorney to take a week or two to organize your documents for filing.

REAL WORLD CASE STUDY:

Recently I received an email from a prospective client at 8:40 AM.  The email was from a lead’s consolidator that sends your email to several attorneys in the area. I do not know how many. I emailed back at 8:41 asking the person to call me. We finally spoke on the phone an hour later. They were in my office at 12:15. The courier arrived at 1:15 to take the signed documents to the Placer county probate court for filing. So within 5 hours of initial contact this new client’s probate was on file in court. FIVE HOURS. Not a week. Not a month. FIVE HOURS! Expect that from your probate attorney.

Our systems continue from the time of initial filing.  We publish right away in a newspaper adjudicated for the county that covers the city of death of your loved one.  We then take care of the initial notice of hearing next.  We calendar, in our system, to check the Court’s calendar notes and to get the Court order filed before the hearing. This type of system continues with the whole probate process so that your balls will not be dropped and your case will finish in a timely fashion!  Because at the end what do most people want? They want their probate finished, as quickly as possible, so they can move on with life.

So back to the question of the day… ok, well I don’t have a nice answer and I don’t want to speak ill of my comrades. Another great example was a new client who recently hired me to handle a probate of a loved one who had just died. They had been in touch with the county public guardian’s office. The county office had given them the name of three well respected probate attorneys.  Ok, two others who I consider very well respected and me being the third.  The client was happy I was able to get him in and get the documents ready so quickly to sign.  It had been about 5 days since our first contact as he was dealing with the funeral and other stuff.  You know why he hired me?  He told me, “I had the names of the three attorneys and I called all three… and you were the only one that called me back.”  It had been five days and the other two attorneys still had not called him back or had someone in their office (again, systems) call him back. If you are a young attorney put this down as law firm marketing 101 – call people back.

So it comes down to this, and yes this is a sales pitch… if you want prompt replies and efficient, high quality, legal services for your California probate then call me today!  We handle probates throughout California as we can “appear” telephonically in all the probate courts.

Call or email me today to discuss your case! 888-920-5983.   -John

Heggstad for non-California assets part deux

In homage to the great American movie starring Charlie Sheen and Lloyd Bridges among others, Hot Shots Part Deux, I bring you part deux on Heggstad petitions for non-California assets. This is a question I get asked about it a lot.  Since it was almost 6 years ago that I put up a post on this topic I thought I should update.

I consulted with Joseph J. Powell, the Nevada attorney who I originally worked with on this matter, to confirm some details. Here are his words on the matter:

What the situation was was that the trustee for the Trust, a CA trust, had gotten a Heggstad order issued by the CA court in regard to NV property, located in Las Vegas.  The trustee then acted on that order and had the title changed in NV, through the Clark County recorder’s office, to the Trust, again a CA trust.  I represented a creditor of the estate and moved to have the transfer undone and was successful . . . . . initially.  My end goal was to have the NV property subject to an NV estate matter so that it would be easier access by my creditor client by requiring it to go through the NV estate administration.  Ultimately, I was not successful as the NV probate court did, eventually, allow it to get into the trust and bypass probate.   I will explain what occurred.

Based on my objection, our probate court undid the transfer to the Trust based on the CA Heggstad order, thus putting it back into the Decedent’s name as it was held prior to the Decedent’s death.  The ruling was based on the fact that CA had no jurisdiction over NV property to render the order in the first place.  However, negating that transfer to the Trust just lasted a short time.  The trustee then brought the equivalent of his Heggstad petition here in Nevada, under the NRS (Nevada Revised Statutes) statute which is the functional equivalent, and contains nearly verbatim language of that found in CA Probate Code 850.  Over my objection, the NV petition was granted.  The basis for my argument was the existence of the creditor’s claim having already been filed.  My argument, in its most boiled down form, was that the transfer to the Trust, skipping probate, would be fine when there is not a creditor’s claim pending, but shouldn’t be allowed when there is an existing claim filed against the Estate.  In other words, a Heggstad petition should only be granted in NV when there is not a creditor issue which would then not allow the creditor to make a claim to the property through the Estate proceeding.  The argument was that a creditor should not have to try to collect against a trust asset, which was technically not a trust asset at death.  In other words, a probate avoidance should not be allowed in the case of a pending claim against the person’ estate, as obviously a creditor cannot bring a claim against the Decedent’s Trust, straight out of the box, unless there was some contractual right to do so.  In NV, a trust asset can only be touched, absent a contractual claim, if the Estate is otherwise insolvent, and there are some other hoops to jump through as well.  In any event, my argument lost and the equivalent of the Heggstad petition was granted by our court and thus allowed the NV house to get into the trust, thus skipping probate.   We could have appealed, but the client determined that it was not worth the hassle as there were, at the time, other avenues to seek collection.

The Los Angeles county case was In the Matter of the HARRY ROSS AND ANNA ROSS REVOCABLE TRUST DATED JULY 9, 1987, AS RESTATED ON MAY 10, 1993 AND AMENDED AS TO THE SURVIVOR’S TRUST ONLY ON AUGUST 31, 2000, with the case number being P-12-074607-T. The Clark County, Nevada, case number was GP016315.  It should be pointed out that the attorney in the LA County matter referred to 17200(b) which, as many know, has similarities to California PC 850. That will be a blog post for another day!

I think the most important take-away from this is that Nevada has a law similar to Heggstad so if you have a Nevada asset outside of a trust just file in Nevada. Contact Mr. Powell (702-255-4552), or other experienced Nevada counsel, to work with them on your Nevada/California cross-over cases. I should add that Mr. Powell is licensed in both California and Nevada.

Until next time….

-John

New California Probate Code Section 851

Attention probate attorneys and do-it-yourselfers:
If you are utilizing California probate code 850 to do a Heggstad petition or other utilization of this broad code section be careful on your notice of hearing! As of January 1, 2018 there is a new California probate code section 851. I will paste it below.

I have highlighted in red the key changes. This is important because failure to follow this will most certainly give you a delay of a month, or more, in your hearing!

If you have any specific 850 or 851 questions it’s possible I can help. Let me know.

-John

 

Probate Code
Prob C § 851. (a) At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure on all of the following persons where applicable:

(1) The personal representative, conservator, guardian, or trustee as appropriate.

(2) Each person claiming an interest in, or having title to or possession of, the property.

(b) Except for those persons given notice pursuant to

subdivision (a), notice of the hearing, together with a copy of the petition, shall be given as provided in Section 1220 if the matter concerns a decedent estate, as provided in Section 1460 if the matter concerns a conservatorship or guardianship, or as provided in Section 17203 if the matter concerns a trust to all of the following persons:

(1) Each person listed in Section 1220 along with any heir or devisee whose interest in the property may be affected by the petition if the matter concerns a decedent estate.

(2) Each person listed in Section 1460 if the matter concerns a conservatorship or guardianship.

(3) Each person listed in Section 17203 if the matter concerns a trust.

(c) A notice of hearing shall contain all of the following:

(1) A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property’s location and assessor’s parcel number.

(2) If the petition seeks relief pursuant to Section 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested.

(3) A statement advising any person interested in the property that he or she may file a response to the petition.

(d) The court may not

shorten the time for giving the notice of hearing under this section. [Amended by Stats. 2017, Ch. 32, Sec. 1. (AB 308) Effective January 1, 2018]

Crazy Court Dates – Courts Must Be Busy

Well the California probate courts must be busy. We just got a crazy court date in a matter in Orange County probate court. That is, we filed a final petition last week to end a probate. So let’s say we e-filed it on January 10th and we got a court date… wait for it… of… MAY 31, 2018. That is 4 and one-half months from now. FOUR AND A HALF MONTHS OUT!? We usually receive court dates about 6 weeks out. To be safe I usually say 6-12 weeks out. So 20 weeks out is CRAZY!

My client and her sister want to move on with life. They want to finish their brother’s probate and put this chapter behind them. Just WOW is all I can say. 20 weeks!

Not much we can do except do everything we can to have everything filed as perfectly as possible every time to avoid a further continuance if possible.

One more reason to get your probate filed quickly is the end is out of our control so let’s start it!

-John

How fast can a probate be filed in California?

I have been asked how fast a probate can be filed in California many times. In my office fast can be REALLY FAST and in some cases the same day as initial contact is made. You can read about that down below.

In most probate cases, I find, my clients want to get to the end of probate as quickly as possible. That is, most people want to check this horrible thing off the list and get on with normal life, to the extent they can, after the loss of a loved one. One of the best ways to finish probate faster is to START faster.

I pride myself on being extremely efficient with the probate process. Heck, I have done over 1,000 probate cases so hopefully I have figured out some ways to be efficient for my clients! That efficiency starts from day one. The other day I spoke to a client about 9:00 am. I laid out the following approach to him.

We spoke at 9:00 am and I told him that if he could get to my office at 11:00 I could have the initial documents ready for signature. Our courier normally comes at 11:30 so the documents would be on file at the probate court by about 1 or 2 in the afternoon. That’s an extreme case but it’s not unheard of in my office.

When you call a prospective attorney, that you might hire, do they tell you they can get you in next week? That’s nonsense. I’ll get you in today or tomorrow but usually TODAY. Call me right now. If I am available I’d love to talk to you about your probate case right now.

I had a similar case last week. Client called about 3:30 in the afternoon. We went over her dad’s probate. I told her to be at my office at 10:00 am the next day and we’d be ready for her. We signed the documents, couriered them at 11:30 and had our court date set a few hours later.

What about for my out of area clients!? I have clients all around the US who lost a loved one in California. Some counties need hard copies to sign and some we can e-file but here’s an example of what we do. We get the needed information from our prospective client. We then email, fax or FedEx the initial documents to you for signing. If we are going to file in a county that requires hard copies we will include a FedEx return label so you can overnight everything back to us.

So, even if you are across the country we can usually be on file in any probate court in the state within about 48 hours of initial contact. Sometimes 24 hours and, in the counties that allow e-filing, we can be on file the same day as initial contact as long as we talk early in the day. Yes, really it’s possible for you to call me right now and we could file your probate case TODAY!

Why wait when you can hire the most efficient California probate attorney, that I am aware of, right now!?

Why wait for an appointment next week when you can have an appointment today or tomorrow!?

Why wait to start your probate when waiting only means it’s longer until the finish!?

Now, having said all that, there are occasionally cases where we want to or need to delay probate. There can be strategic reasons behind slowing things down at the beginning or slowing things down later. However, don’t you want to talk to an experienced probate attorney NOW to find out what the options are?

I have been a probate attorney since 1994 and have significant experience with probate cases. My personal practice is 100% probate. I do not do other cases.

Call or email me TODAY and let’s talk about your case.

-John

New Tax Laws and YOU

Unless you live under a rock, deep in a cave, you have heard about the new tax act that Congress is putting together. This is not a political commentary on that act. More importantly a few things to remember:

– With regards to estate tax very few people reading this need to worry about that element of the new tax act as it is set to bump the estate tax exemption from $5.45m to $10.9m. That is per person. So if you are a married couple with over $21.8m then your loved ones would still pay estate tax after your death. Also, it should be noted that the law sunsets so could go back to $5.45m per person or whatever else Congress feels like. However, for all practical concerns the estate tax is dead.
– However, there are still income tax concerns after death as relates to the step-up in basis. It is possible that people with funded A/B or “bypass” trusts should talk to an attorney about getting a probate court order to revoke that irrevocable trust!?
– Likewise, the same applies for Qualified Personal Residence Trusts (QPRTs) that might not be needed anymore. Again, they can be revoked in probate court.
– Lastly, plain old living trusts are still necessary to avoid probate after death in California as full probate kicks in at $150,000 of gross assets.

So, the apparent death of the estate tax does not mean you should ignore your estate plan as you could leave your loved ones a bad tax surprise and could leave them in probate court. Call your estate planning attorney your estate reviewed in light of the new tax act coming down the pipe from Washington DC.

My best wishes to you and yours this holiday season.

-John

“Letters Testamentary” v. “Letters of Special Administration”

I had an interesting case lately. The decedent had money in another jurisdiction that was not in their trust. However, it’s in a different jurisdiction, with different laws, and it sounds like the bank account has some funky titling not normal in the United States. It simply wasn’t clear what the banker wanted to clear title though. I should add this is a big money situation and time is of the essence. Initially I was told they wanted “letters” but there are many varieties of letters so which one did they want?

Getting “letters” means going to probate court. However, it does not mean that you are definitely doing a full probate. There are options and each one takes a different amount of time and costs are different as well. The types of letters are:

1) Letters Testamentary – this is where the decedent had a will and the named executor has been appointed by the Court to serve;

2) Letters of Administration – is basically identical to letters testamentary but means either there is no will or the person named executor is not serving (i.e. petition for letters with will annexed).

3) Letters of Special Administration – this is totally different than the above. It’s typically a short term (temporary) solution and can be attained on an emergency (ex parte) basis in some cases.

So in this case what does the banker really want? As I explained to my client (the named executor) there are options. Here’s a modified version (to keep attorney-client communications private) of what I told him:

“Jimmy: (no that’s not his real name)
My concern is I have a few different directions I could go.

Initially I was thinking to just file for letters of special administration. This is basically a temporary position. I would ask for the most powers the Court will grant but it’s unknown what exactly it will say. My thought is the bank in the other jurisdiction might be happy because it will be “letters” and it will be issued by a court.

However, the more I think about it I think I want to also file a standard probate. It’s a higher chance of success at our court date but we are at the mercy of the Court for when our initial Court date is. Interestingly the probate code says the court “must” give us a court date within 30 days of filing. You’ll laugh but most courts consider the word “must” as optional and we could get an initial court date between 1 and 3 months out. Once we do have our court date we will almost for sure get letters testamentary. This basically means the court has accepted the will so is a little more likely the bank will accept it. It’s the granddaddy of probate documents I would say. Once the bank accepts it we will close our probate as having no assets. Actually we’ll leave it open 4 months which allows creditors to file claims but I assume your parents do not have any creditors.

Seeking letters of special administration is more expensive as I have to spend time sitting at the courthouse in an attempt to get them issued on a rush basis. That could be as soon as next week though. However, it costs money between attorney time sitting at the courthouse and the court filing fees. If we are successful, and the bank accepts them, then we can just drop our full probate petition.

Please let me know if this makes sense to seek letters in two different ways or fill me in on any other info the bank provided.

If you want to chat on the phone I have time Tuesday and Wednesday.

-John”

So, as you can see there are options. It’s a gray area here…. There is not simply one answer that works. There are options. In this case where we don’t know exactly what the bank wants that’s the first step. Once we have the bank pinned down, in writing, then we can proceed.

To me this is a great example of why probate is much more complex than a do-it-yourself book might indicate. There is no book for situations like this one!

-John

“Hi Grandma it’s….” ** SCAM ALERT **

SCAM ALERT

An old friend lost her husband recently. He was a really great guy but that’s not the point of this post. She told me that within days of the death she received a call where the caller said, “hi Grandma it’s your grandson Michael….” I don’t remember the details of what she told me but I think he asked for money in some fashion. Maybe money to come visit for the funeral. I don’t recall. Doesn’t matter. Point is he was a scam artist and not her grandson. The key fact here is she is fully aware of her faculties and knew it was not her grandson.

Of course in this day and age it’s pretty easy for scam artists to read obituaries online, find a person’s phone number and call them up. In fact, that’s always been a possible scam but with the internet, and all the easily obtainable information, it is even easier as there is so much information out there.

So what’s the point? If you lose a loved one BE CAREFUL and certainly DO NOT SEND MONEY TO ANYBODY without confirming with someone else that it’s legitimate.

If you are taking care of an elderly family let them know to be on high alert as scam artists are out there and they love a person in grief that they can take advantage of.

BE CAREFUL!

California Civil Code 2920.7 – Survivor Rights with Real Estate Mortgages

On January 1, 2017 the California legislature enacted a new law, California Civil Code 2920.7 (pasted below) which aims to help the survivor deal with a mortgage company when their name is not actually on the mortgage. It’s like a survivor’s bill of rights in a way.

How does this happen? The most common situations I see, related to this, are:
1) Husband and wife buy house together, husband has bad credit or is self employed, house is purchased in wife’s name alone, mortgage is in wife’s name alone, wife dies, husband can’t communicate with mortgage company.

2) A similar situation is when a family member (child, grandchild, etc…) live with relative, mortgage is in the relative’s name, the relative dies, and now the kid, grandkid, etc… can not communicate with the mortgage company.

To be clear this new Civil Code does not avoid a person having to go to probate court to clear title to real estate. However, it enables a person to communicate with a mortgage company which is huge. How much is owing on the mortgage, what’s the reinstatement amount, etc….

The main requirements are you have to be a successor in interest and that you lived in the house. If you can establish these two factors you can communicate with the mortgage company and it creates some timelines the mortgage company must comply with which would seem to delay a foreclosure slightly… and I stress slightly.

If a loved one dies in California hire an attorney! If for some reason you can not find an attorney to take your case, or want to handle things yourself, then I would read this civil code section carefully because it might provide some help to you. It’s long and it’s complex but it could be helpful to give you survivor rights in dealing with a California mortgage.

Good luck! -John

CALIFORNIA CIVIL CODE 2920.7
(a) Upon notification by someone claiming to be a successor in interest that a borrower has died, and where that claimant is not a party to the loan or promissory note, a mortgage servicer shall not record a notice of default pursuant to Section 2924 until the mortgage servicer does both of the following:
(1) Requests reasonable documentation of the death of the borrower from the claimant, including, but not limited to, a death certificate or other written evidence of the death of the borrower. A reasonable period of time shall be provided for the claimant to present this documentation, but no less than 30 days from the date of a written request by the mortgage servicer.
(2) Requests reasonable documentation from the claimant demonstrating the ownership interest of that claimant in the real property. A reasonable period of time shall be provided for the claimant to present this documentation, but no less than 90 days from the date of a written request by the mortgage servicer.
(b) (1) Upon receipt by the mortgage servicer of the reasonable documentation of the status of a claimant as successor in interest and that claimant’s ownership interest in the real property, that claimant shall be deemed a “successor in interest.”
(2) There may be more than one successor in interest. A mortgage servicer shall apply the provisions of this section to multiple successors in interest in accordance with the terms of the loan and federal and state laws and regulations. When there are multiple successors in interest who do not wish to proceed as coborrowers or coapplicants, a mortgage servicer may require any nonapplicant successor in interest to consent in writing to the application for loan assumption.
(3) Being a successor in interest under this section does not impose an affirmative duty on a mortgage servicer or alter any obligation the mortgage servicer has to provide a loan modification to the successor in interest. If a successor in interest assumes the loan, he or she may be required to otherwise qualify for available foreclosure prevention alternatives offered by the mortgage servicer.
(c) Within 10 days of a claimant being deemed a successor in interest pursuant to subdivision (b), a mortgage servicer shall provide the successor in interest with information in writing about the loan. This information shall include, at a minimum, loan balance, interest rate and interest reset dates and amounts, balloon payments if any, prepayment penalties if any, default or delinquency status, the monthly payment amount, and payoff amounts.
(d) A mortgage servicer shall allow a successor in interest to either:
(1) Apply to assume the deceased borrower’s loan. The mortgage servicer may evaluate the creditworthiness of the successor in interest, subject to applicable investor requirements and guidelines.
(2) If a successor in interest of an assumable loan also seeks a foreclosure prevention alternative, simultaneously apply to assume the loan and for a foreclosure prevention alternative that may be offered by, or available through, the mortgage loan servicer. If the successor in interest qualifies for the foreclosure prevention alternative, assume the loan. The mortgage servicer may evaluate the creditworthiness of the successor in interest subject to applicable investor requirements and guidelines.
(e) (1) A successor in interest shall have all the same rights and remedies as a borrower under subdivision (a) of Section 2923.4 and under Sections 2923.6, 2923.7, 2924, 2924.9, 2924.10, 2924.11, 2924.12, 2924.15, 2924.17, 2924.18, and 2924.19. For the purposes of Section 2924.15, “owner-occupied” means that the property was the principal residence of the deceased borrower and is security for a loan made for personal, family, or household purposes.
(2) If a trustee’s deed upon sale has not been recorded, a successor in interest may bring an action for injunctive relief to enjoin a material violation of subdivision (a), (b), (c), or (d). Any injunction shall remain in place and any trustee’s sale shall be enjoined until the court determines that the mortgage servicer has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied.
(3) After a trustee’s deed upon sale has been recorded, a mortgage servicer shall be liable to a successor in interest for actual economic damages pursuant to Section 3281 resulting from a material violation of subdivision (a), (b), (c), or (d) by that mortgage servicer if the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale. If the court finds that the material violation was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, the court may award the successor in interest the greater of treble actual damages or statutory damages of fifty thousand dollars ($50,000).
(4) A court may award a prevailing successor in interest reasonable attorney’s fees and costs in an action brought pursuant to this section. A successor in interest shall be deemed to have prevailed for purposes of this subdivision if the successor in interest obtained injunctive relief or damages pursuant to this section.
(5) A mortgage servicer shall not be liable for any violation that it has corrected and remedied prior to the recordation of the trustee’s deed upon sale or that has been corrected and remedied by third parties working on its behalf prior to the recordation of the trustee’s deed upon sale.
(f) Consistent with their general regulatory authority, and notwithstanding subdivisions (b) and (c) of Section 2924.18, the Department of Business Oversight and the Bureau of Real Estate may adopt regulations applicable to any entity or person under their respective jurisdictions that are necessary to carry out the purposes of this section.
(g) The rights and remedies provided by this section are in addition to and independent of any other rights, remedies, or procedures under any other law. This section shall not be construed to alter, limit, or negate any other rights, remedies, or procedures provided by law.
(h) Except as otherwise provided, this act does not affect the obligations arising from a mortgage or deed of trust.
(i) For purposes of this section, all of the following definitions shall apply:
(1) “Notification of the death of the mortgagor or trustor” means provision to the mortgage servicer of a death certificate or, if a death certificate is not available, of other written evidence of the death of the mortgagor or trustor deemed sufficient by the mortgage servicer.
(2) “Mortgage servicer” shall have the same meaning as provided in Section 2920.5.
(3) “Reasonable documentation” means copies of the following documents, as may be applicable, or, if the relevant documentation listed is not available, other written evidence of the person’s status as successor in interest to the real property that secures the mortgage or deed of trust deemed sufficient by the mortgage servicer:
(A) In the case of a personal representative, letters as defined in Section 52 of the Probate Code.
(B) In the case of devisee or an heir, a copy of the relevant will or trust document.
(C) In the case of a beneficiary of a revocable transfer on death deed, a copy of that deed.
(D) In the case of a surviving joint tenant, an affidavit of death of the joint tenant or a grant deed showing joint tenancy.
(E) In the case of a surviving spouse where the real property was held as community property with right of survivorship, an affidavit of death of the spouse or a deed showing community property with right of survivorship.
(F) In the case of a trustee of a trust, a certification of trust pursuant to Section 18100.5 of the Probate Code.
(G) In the case of a beneficiary of a trust, relevant trust documents related to the beneficiary’s interest.
(4) “Successor in interest” means a natural person who provides the mortgage servicer with notification of the death of the mortgagor or trustor and reasonable documentation showing that the person is the spouse, domestic partner, joint tenant as evidenced by grant deed, parent, grandparent, adult child, adult grandchild, or adult sibling of the deceased borrower, who occupied the property as his or her principal residence within the last six continuous months prior to the deceased borrower’s death and who currently resides in the property.
(j) This section shall apply to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units. “Owner-occupied” means that the property was the principal residence of the deceased borrower.
(k) (1) Any mortgage servicer, mortgagee, or beneficiary of the deed of trust, or an authorized agent thereof, who, with respect to the successor in interest or person claiming to be a successor in interest, complies with the relevant provisions regarding successors in interest of Part 1024 of Title 12 of the Code of Federal Regulations (12 C.F.R. Part 1024), known as Regulation X, and Part 1026 of Title 12 of the Code of Federal Regulations (12 C.F.R. Part 1026), known as Regulation Z, including any revisions to those regulations, shall be deemed to be in compliance with this section.
(2) The provisions of paragraph (1) shall only become operative on the effective date of any revisions to the relevant provisions regarding successors in interest of Part 1024 of Title 12 of the Code of Federal Regulations (12 C.F.R. Part 1024), known as Regulation X, and Part 1026 of Title 12 of the Code of Federal Regulations (12 C.F.R. Part 1026), known as Regulation Z, issued by the federal Consumer Financial Protection Bureau that revise the Final Servicing Rules in 78 Federal Register 10696, of February 14th, 2013.
(l) This section shall not apply to a successor in interest who is engaged in a legal dispute over the property that is security for the borrower’s outstanding mortgage loan and has filed a claim raising this dispute in a legal proceeding.
(m) This section shall not apply to a depository institution chartered under state or federal law, a person licensed pursuant to Division 9 (commencing with Section 22000) or Division 20 (commencing with Section 50000) of the Financial Code, or a person licensed pursuant to Part 1 (commencing with Section 10000) of Division 4 of the Business and Professions Code, that, during its immediately preceding annual reporting period, as established with its primary regulator, foreclosed on 175 or fewer residential real properties, containing no more than four dwelling units, that are located in California.
(n) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.
(Added by Stats. 2016, Ch. 838, Sec. 2. Effective January 1, 2017. Repealed as of January 1, 2020, by its own provisions.)

Steps to Take upon death of a loved one

You just lost a loved one… now what?

As a probate attorney for over 20 years I have dealt with well over 1,000 deaths at work. I have also dealt with the deaths of several family members and close friends. It’s a part of life… death and taxes! So, you just a loved one what should you do? We provide this to assist you during these trying days.

First and foremost take care of yourself! Though we are not psychologists nor do we have any formal training in the realm of psychology it is a part of our work to hear about the death of a loved one. We talk to people about death every day. Do something nice for yourself while you make all the necessary arrangements! Some suggestions might be to get a massage, take time to talk to friends and family, or even call upon a mental health professional for a consult. Just do not forget that you have needs during this most stressful and difficult time. DO NOT FORGET ABOUT YOURSELF!

As you move forward try not to do this alone. Call upon a trusted friend or relative for help. If you don’t have anybody you feel comfortable reaching out to maybe you have religious clergy who could provide some guidance!? Or a good mortuary can be helpful. The key is you will need, at a minimum, some direction and likely more than that. Do not be shy as people generally want to help those in need. ASK FOR HELP!

Sadly, when someone dies bad people might take an opportunity to benefit for themselves. I strongly encourage people to secure the decedent’s home and consider moving items away from the house for safekeeping. Though you do not have letters issued by the probate court there is a practical necessity to protect things. You probably shouldn’t, or physically can’t, move everything but small items of financial or sentimental value should probably be moved to a safe place. Just make sure the rest of the family knows so nobody thinks you are stealing the items! SECURE ITEMS OF VALUE!

Along the lines of securing items of value is stopping deliveries and mail from being made to the house. Cancel the newspaper right away so they don’t pile up in the driveway! You can try to put a mail forward in with the US Post Office so that the mail goes somewhere other than the deceased’s house. At least ask the post office to put a hold on the mail. STOP DELIVERIES!

Once your deceased loved one’s home and property are secure you need to CALL A MORTUARY or funeral home. They deal with death all day and every day. They are very professional in my experience. A good professional is worth the cost here. They will help you with a number of things like obtaining death certificates and can point you in the right direction for many other things. This is not the time to do it yourself! CALL A MORTUARY or FUNERAL HOME FOR HELP!

Along the line of death certificates order a few more than you think you need. It is much easier to have a few extra then to order more copies later. If you think you will need 5 or 10. If you think you need 10 order 15. Generally one for each bank, life insurance company, financial company, and likely some other things you have not thought of. ORDER EXTRA DEATH CERTIFICATES!

Once you have selected the date, time and location of the funeral or memorial service you need to figure out who is going to officiate the event. Using a religious clergy is quite common but certainly not your only option. FIND YOUR OFFICIANT!

Hopefully you found your loved one’s phone book or maybe their email account was still open on their computer… because you need to notify the masses. Let them know of the sad news and invite them to the ceremony if it is open to them. Don’t be shy about asking for help making the calls. People want to know when someone dies. In my experience, even if I haven’t talked to them in several years I want to know. CONTACT FRIENDS AND RELATIVES!

At this point people might ask if there is a charity they could donate to in honor of the death. I often seen medical charities, the decedent’s college, or just a charity they cared about. It’s a nice way for people to show they care. This can be included in the obituary too! PICK A CHARITY!

Most people contact the local newspaper and/or the newspaper where your loved one spent the majority of their life. Be careful here as prices can add up! Obituaries can be expensive if you include every last thing you want to include. Read some other obituaries for ideas of what to include and not to include. I would make sure the newspaper has their own online portal or, better yet, links to a major site like legacy.com. Do not forget to include funeral information if it is open to the public. PREPARE A WELL WRITTEN OBITUARY!

You probably need to get a group of professionals to help you. The common professionals I see used at death are: estate attorney, financial planner, accountant and Realtor. All of them play an important role. They can make life easier for you. HIRE YOUR PROFESSIONALS!

Once you have a death certificate you might want to notify life insurance, 401k’s, IRAs, and any other assets that had, or might have, named beneficiaries. There can be tax consequences in some choices you make so talk to your tax professional before submitting the paperwork. FILE DEATH CLAIMS!

Aside from the death claims maybe the decedent had bank accounts, bonds, or other assets. If so you need to determine how to access them. This is often done by showing trust paperwork and a death certificate if there is a living trust. If there is no living trust then going to probate court may be required. Your estate attorney should be able to make this easier for you. CONTACT FINANCIAL INSTITUTIONS!

Some people don’t realize but debts are not extinguished when someone dies except for certain student loans. As time goes on you should go through your loved one’s stuff and make a list of all possible creditors. Generally you’ll want to notify them before money is distributed to the heirs and beneficiaries. This is a place your estate attorney can likely help. DETERMINE DEBTS AND LIABILITIES!

When you are going through, making a list of all possible creditors, you should start to contact the credit card companies. Let them know of the death so that they close the account. While they usually wipe away any post-death fraudulent activity it’s best to close the accounts to avoid fraudulent activity from happening. CLOSE CREDIT CARDS!

You eventually need to cancel the decedent’s insurance and in due time their insurance carriers should be notified. Make sure you have new insurance lined up before canceling anything. INSURANCE IS IMPORTANT!

At some point utility bills should be taken out of the decedent’s name but there is no real urgency for that. The only drawback to not switching the account name over is that you likely will not be able to communicate much with the utility providers. That is, they will not supply you information other than maybe the amount due. SWITCH NAMES ON UTILITY ACCOUNTS!

Best wishes going through these most difficult days.

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10.0John Bernard Palley
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