“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.


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!


“Hi Grandma it’s….” ** 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.


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

(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 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.

Bad deeds

I have had multiple cases recently where title companies have refused to honor deeds recorded around the time of death. That is, the person just before death signed a deed to transfer the property to another. In each case the facts are slightly different.

Before I explain more let me tell you that, in my personal opinion, title companies can be above the law. What I mean is that the laws may say a certain deed meets the legal requirements to transfer title but that doesn’t mean a title company will honor that.

Sometimes maybe the title company is actually technically correct and other times I am not so sure. In my opinion title companies are more suspicious when a deed is recorded just before or just after death. I think they look at them more critically. Also, the homemade and often handwritten deeds draw critical review.

You need to be careful in preparing deeds. A deed is not to be taken lightly as it’s a major and significant legal document.

Things to look out for:

– Double check your legal description and then triple check it for accuracy. That’s what we do.
– I would list the address and APN number to make it easy for people.
– Do not try and sign a deed by way of a general power of attorney. “Specific” POAs are required.
– When possible record deeds as soon as possible and preferably before death.

Failure to get the deeds right can end up in a visit to the probate court!

Good luck! -John

Estate planning lessons from other’s mistakes

On March 11, 2016 I got the call of a lifetime… and I do not mean that in a good way. I got the call from the police, in Logan, Utah, that my mother had been shot to death by her husband. This is not a post about domestic abuse, gun control or mental health awareness. That’s not the point of my webpage. This is an estate planning and probate website so let’s talk about those aspects of this horrible situation. First of all I have posted before, since my mom’s death, about some of things I learned. I want to take those posts and go a step further here. I want you to be able to learn from other’s mistakes.

Just last week I paid off her mortgage. You would think that would be easy to do, right? That is, I have my mom’s money, my mom owed the bank some money, and therefore 2 + 2 should equal four. I have dealt with this before so it wasn’t a shock… though parts of it are a little surprising. If a person owes a bank money you would think the bank would make it really easy to pay, right? Let me tell you they do not! I have seen this before with clients and it can be horrible. My situation was better than many I have seen. Without online access if you call the mortgage company they won’t talk to you. They will not share any information generally. In my mom’s situation I was able to access her online account which enabled me to find out the payoff amount. The online account was already linked to her bank account. Thus it made it pretty easy. However, there was extra money in the mortgage impound account. Some call it an escrow account. Since the mortgage was in the name of Mary Palley and not the Mary Palley Trust they sent me a check made payable to Mary Palley. So what do you do with a check made payable to a dead person?

This is certainly not the first time this has come up for me in the last year. There was a small insurance refund, a magazine refund, a cable tv refund, a credit card refund and several other checks of small amounts of money. They were all made payable to my mom individually and not her trust. I have heard of people leaving a bank account open in the name of the deceased person. I can not say if that’s technically correct but I would err on the side of saying it’s probably not technically correct. I thus can’t endorse that plan. Instead, the proper thing to do, when there is no probate, is to send the check back to the issuer along with a small estate affidavit. In California, anytime the probate assets are under $150,000 a full probate is not required and small estate affidavits may be used to clear assets. In Utah that amount is $100,000. Luckily my mom’s estate qualifies so I have used the small estate affidavits for several small checks. It does feel wrong to mail back checks but it is the technically right thing to do. They usually get re-issued and returned within 2-3 weeks in my experience.

Then the question is who should the checks be made payable to when you do a small estate affidavit? I think an argument could be made to pay them to the decedent’s trust and an argument could be made to pay them directly to the beneficiary or beneficiaries of the trust. I do think technically speaking payment to the trust is probably the most accurate. Thus the small estate would be signed by the trustee of the trust asking for payment to be made to the trust. You would then deposit the money into the trust account, in this case the Mary Palley Trust, and then you can distribute from there.

So if you have a mortgage and a living trust I encourage you to connect that mortgage to the living trust. We advise clients to do this but didn’t do our own that way. What’s that saying about a cobbler’s child….

Also, if you do a re-finance try to do the re-finance in the name of the trust.

Lastly, a new mortgage should be taken out in the name of the trust if it’s allowed and doesn’t have any extra cost.

What else besides connecting mortgages to trusts? Other lessons learned?

I think consolidation into a trust account continues to be my biggest issue. I spent countless hours gathering a small value of stocks… though very well diversified. It would be much easier if people, before dying, are able to organize all their stocks into one or more brokerage accounts. Make sure those brokerage accounts are opened in the name of your trust! It’s not hard to do and saves a ton of work by your loved ones after death.

The same is true of cash accounts, CD’s, money markets, checking, savings, and just about any other financial account. Other than IRA, 401k and retirement accounts just about all accounts should be owned by your trust.

Consolidate, consolidate, consolidate!


The less accounts the better. You need to be mindful of FDIC limits (currently $250k per bank) but otherwise consolidate!

Bonds are another one we see. Get those federal bonds put into a federal bond account in the name of your trust.

Think ahead by doing stuff while you are mentally capable. Your loved ones will thank you!

Also, if you are thinking about updating your trust just do it! Do not delay. Stuff happens! I hate to say that but it’s true. You aren’t promised tomorrow so if you have changes to make then make them!

I have posted on this general topic several times but I shouldn’t make it sound like I am just a complainer. My mom was nice enough to have a living trust, have most of her assets owned by the living trust, and generally left pretty decent financial records. I feel loved that she took the time to set things up as well as she did.

Much more importantly she taught me well! I can never thank her enough for all she did for me.

With much love, RIP Mary Flynn Palley, 1942-2016.


P.S. Here’s a picture of my mom at her UCLA School of Law graduation about 1979

Carne v. Worthington (2016) 246 Cal.App.4th 548 – Heggstad petitions with trusts

You likely know that tries to stay up on all “Heggstad” related news. As the owner of it is imperative that I keep up-to-date on these cases. We advise clients, and potential clients, almost daily about the nuances of a Heggstad petition.

As you likely know a “Heggstad” petition is a probate court petition brought pursuant to California Probate Code 850. The primary goal of a Heggstad petition is to get an asset into a trust that was not properly titled as such. The common scenarios we see are:

1) the person set up the trust themselves, without the aid of an attorney, and failed to properly “fund” the trust;

2) the person set up the trust with an inexperienced or sloppy attorney who did not help the client properly fund the trust;

3) the asset was acquired after the trust establishment and the trust was not properly funded;

4) the person did a re-finance on their house, the title company moved the property out of the trust, and failed to put the property back into the trust.

The seminal case was the Estate of Heggstad in 1993. That case looked about like this:

Estate of HALVARD L. HEGGSTAD, Deceased.

GLEN P. HEGGSTAD, as Trustee, etc., Petitioner and Respondent, v. NANCY RHODES HEGGSTAD, Objector and Appellant.

This case was groundbreaking and has been used countless times to successfully fund trusts after death. Estate of Heggstad, (1993) 16 Cal.App.4th 943).

In 2015, as you have read on my blog before, the courts went further than Heggstad with the case: Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156. This case was essentially Heggstad on steroids and made it even easier to get assets into a trust after death.

Now it’s time to go further! The latest case in the Heggstad family is Carne v. Worthington (2016) 246 Cal.App.4th 548. Mentioning Heggstad, by name, over 20 times the court took Heggstad further.

As you know intent is still the key with “Heggstad” petitions. The required showing of intent is just less than it used to be. In most California courts this has been a problem for real estate. That is, most courts have been comfortable getting personal property (such as bank accounts) into a trust without much specific showing of intent. Something along the lines of “I intend for all my assets to be in this trust” has been enough in many cases. However, getting real estate transferred after death took more than that.

With Ukkestad and now Carne I believe with either personal property or real estate you should have a very good chance of getting assets put into a trust. Intent is still needed but that showing of intent probably does not have to be as specific as it used to.

Of course I am just providing GENERAL information here. Each case is unique and you should review your facts with an experienced Heggstad lawyer. As an attorney that has successfully performed dozens and dozens, if not over 100, Heggstad petitions I can very quickly give you my professional opinion. That is not an opinion based on reading law books and theory but actually DOING these cases. I believe I have an extremely good sense of what will work in most courts.

Also, it’s important to keep in mind that sometimes a Heggstad is not the right approach. For example, if the asset in question is worth less than $150,000 there is likely a better way to get the asset into the trust; a more sure way that does not cost more. So, again, evaluate your options with an experienced estate attorney.

The attorney you talk to should know about Heggstad, Ukkestad, and Carne!

Best of luck to you. -John

Calendar Notes in Probate Court

You get calendar notes in your probate court case. Now what do you? Every county is different. Some counties post calendar notes (or “tentative rulings”) a day before the court hearing and some do it a month before. Some do not post anything and you appear in Court and see what the Judge has to say. For those that do post notes how quickly can you or your attorney reply?

We pride ourselves on efficiency. We file probate cases extremely quickly. Time is of the essence in most probate cases as people, typically, want to move on from the death of their loved one. Or maybe they waited a while before having the emotional energy to deal with probate so there could be some issues developing like a house in foreclosure. EFFICIENCY IS KEY!

Few of us are perfect. Having filed over 1,000 probate cases we still get calendar notes to address. Sometimes they are mistakes we made and sometimes, dare I say it, it is at least possible that the court missed something in their review of the file. The key is filing something FAST to try and preserve your Court date.

Here are actual notes from our case. This is a public record but I still removed the name:

16. S-PR-XXXXXXX ___________. – In Re the Estate of
Missing proof of publication.
Missing required allegations at ¶ 5a(3)-(4) (RDP).
Proof of subscribing witness appears incomplete. Additional representations are needed; see Prob.C. §§ 8220(a) & 6110(b)-(c).

So first question is how quickly do you or your attorney get the notes? some counties, like Sacramento, email us as soon as the notes are posted. Others have to be checked manually. For those we check at least once a day and, as the court date gets closer, multiple times a day. We want to find out your notes as soon as possible so we can fix anything that needs to be fixed.

Then what?

The above notes are not uncommon.

Note 1 “Missing proof of publication.” We had a close Court date and the publication takes a few weeks. The newspaper often files just days before the court date so that’s a common note.

Note 2 “Missing required allegations at ¶ 5a(3)-(4) (RDP).” We missed one box. Did the decedent have a registered domestic partner. Out of, approximately 1,000 probate cases, I have only checked that one a couple times. It’s pretty rare. To fix we really need a verified supplement signed by our client. We got her a document to sign within a half hour of seeing the note. She printed, signed, emailed back to us, and we “fax filed” it the same day. So that’s cleared.

Note 3 “Proof of subscribing witness appears incomplete. Additional representations are needed; see Prob.C. §§ 8220(a) & 6110(b)-(c).” In some cases the will was not prepared with correct language which requires us to have to track down one of the will witnesses and have them sign a form about the execution of the document. A lot of times that will signing was 20 years ago so they might not remember. This note is a tough one. I think it’s arguable that the witness checked the boxes which they recalled but the court wanted more. So we discussed it with them and then filed an amended proof of subscribing witness form.

The point is these things happen. A large percentage of cases have calendar notes. The keys are: 1) finding the calendar notes as quick as possible to maximize the time you have to fix them, 2) determining what you need to do to address the notes, 3) efficiently addressing the notes to the Court’s satisfaction.

We got our calendar notes Friday morning for a Wednesday hearing. Only a few days and the Monday was a court holiday. WE GOT IT APPROVED ON-TIME THOUGH!

Good luck in your probate cases! -John

FAST probate in California….

Did you know you can request your first probate court hearing be hearing in only 30 days? The California probate code specifically authorizes this at California probate code 8003. Here is the text of that section:

8003. (a) The hearing on the petition shall be set for a day not
less than 15 nor more than 30 days after the petition is filed. At
the request of the petitioner made at the time the petition is filed,
the hearing on the petition shall be set for a day not less than 30
nor more than 45 days after the petition is filed. The court may not
shorten the time for giving the notice of hearing under this section.
(b) The petitioner shall serve and publish notice of the hearing
in the manner prescribed in Chapter 2 (commencing with Section 8100).

In counties like Sacramento the first hearing date might be 3 months out so invoking PC 8003 may be wise. This is certainly something to ask your attorney about because it is not automatic… regardless of what the code section says.

For our clients who are in a special rush we invoke PC 8003 to help them achieve a fast probate… or at least faster probate.

If you are interested in the most efficient probate process possible contact us to discuss your case.


New Years Resolutions

Each year I am told of clients who had a new years resolution to “Get our estate plan done this year….” Each year they tell me they failed to do it until finally they came to see me. Often they tell me “the estate planning process was much easier than we thought it would be….” Maybe YOU have been procrastinating about getting your estate plan done!? Maybe you have young children… or not so young anymore as you are busy. Maybe you have assets that you are concerned about taxes, probate, and even just kids WASTING the money. GET YOUR ESTATE PLAN DONE! I strongly believe that DONE IS BETTER THAN PERFECT! You may never have your thoughts organized 100%. You may never agree with your spouse on everything. There may always be one more change about to happen. DONE IS BETTER THAN PERFECT! Protect yourselves, protect your family, protect your loved ones, avoid attorney fees, avoid taxes, and GET YOUR ESTATE PLAN DONE NOW! New years is the best time to do it! Here’s to a great 2017 to you and yours! -John

Ratings and Reviews

10.0John Bernard Palley
Wealth Counsel Member
2015 Best of the Best Badge