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.

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.

-John

How to probate when a husband and wife die a year a part

I had a really interesting fact pattern today that I wanted to share. I got the perspective client’s permission to share but, of course, names are changed for privacy. Sadly Gina’s mom, Molly, died in December of 2015 and her dad, Donald, died in December of 2016. A crappy 12 months for Gina we can all agree. They owned a house in Sacramento county.

A very common scenario we see is where the decedent’s home ends up in one spouse’s name alone. This is often done for financing purposes where one spouse has great credit, one spouse has bad credit, one spouse is employed, one spouse is self employed, etc…. Several of those factors were present here. So there is a house in Molly’s name as her “sole and separate property.” That is, Donald actually deeded his interest in the house to Molly as her sole and separate property.

Our goal is to get the house into Gina’s name in the most efficient and cost effective manner possible. Oh ya, I forgot to mention, Gina is an only child.  For simple math let’s say the house is worth $500k with a $250k mortgage.  Let’s assume no other assets of significance to keep this simple.  Gina has options. Let’s discuss them.

OPTION A:

Gina could treat the house as her mom’s separate property. That is what the deed says so that is a very reasonable approach. By doing that there would be a probate for a $500,000 house. At the conclusion of probate, due to the laws of intestacy, Gina would get 1/2 of the property and the other 1/2 would go to dad’s estate. The cost would be roughly $13,000 in attorney fees and roughly $2,000 in court costs for a total of $15,000.

That’s not all though. Then dad’s 1/2 has to be probated.  Let’s assume $250k value so about $8,000 in attorney fees and just under $2,000 in court costs.

Yikes up to $25,000 in probate fees and costs… but that’s not all.  Let’s assume the house appreciated $50,000 from Molly’s death until Donald’s death. Based on the Sacramento real estate market in recent years that is a reasonable guess. That would slightly reduce the cost of the probate by $1,000 (that is the cost of probating a $450,000 house rather than a $500,000 house) but still all in at $24,000.

However, that’s not all… bigger still is 1/2 of that $50,000 gain would not step-up in basis at Donald’s death thus leaving Gina with a tax basis in 1/2 of the property $25,000 less than current value. If we assume 25% between federal and state capital gains tax that’s about $5,000 or $6,000 more.

In summation I think option A would cost Gina about $30,000.

OPTION B:

My preferred plan is option B. Let me explain.  Yes, the deed says “sole and separate property” but does it always mean that?  We have, many times, successfully used a spousal property petition even when the title says that it is separate property. Again, remember, this deed is only in Molly’s name alone due to financing reasons. The reality is it was community property.  Title is just a presumption and that presumption would be easily knocked down.

So we would prepare a spousal property petition (SPP) to transfer the property, 100%, from mom to dad.  Different attorneys charge different amounts for preparing an SPP but let’s just call it $5,000 between attorney fees and court costs as an estimate.

The SPP would move the property 100% to dad’s estate.  We would then probate dad’s $500,000 house. The cost would be about $15,000 for that probate

The total of attorney fees and court costs with option B is thus $20,000.

PLUS Gina gets a FULL STEP UP IN TAX BASIS so will not have a gain on sale and thus avoids about $5,000 or $6,000 in capital gains tax. Gina is the big winner here!

There are always other facts to consider. In this case I asked about creditors and confirmed that Donald was not on Medi-Cal. That is, I don’t want to create a large estate for dad and then have dad’s estate go to creditors.

Please remember that each case can have other unique factors so talk to an attorney before trying this on your own.

-John

 

The California probate process speech

I feel thankful that NBI and other organizations consistently ask me to come talk about estate and probate law.  Yesterday I had the pleasure of speaking for almost two hours on probate law to a group of attorneys and paralegals. My topic outline is below. I get a real charge out of talking to a group and sharing my knowledge. Should your organization need a speaker please do not hesitate to reach out to us!  -John

 

I. HOW TO FILE AN ESTATE IN PROBATE COURT
9:00 – 9:50, John B. Palley
A. Distinctions Between the Modest and Larger Estate
B. The Estate Timetable and What Needs to Be Done
C. Steps for Proving the Will
D. Steps for Challenging the Will
E. How to Prepare and File the Inventory
II. WORKING WITH EXECUTORS AND ADMINISTRATORS
9:50 – 10:40, John B. Palley
A. Duties of Executors or Administrators During the Probate Process
B. Paralegal Contact With Executors or Administrators
C. How Misconduct and/or Removal of Executors or Administrators is Handled
D. Compensation
E. Special Administration
F. Duties of the Attorney for the Executor – Who is the Client?

Probate book for your KINDLE – download it now!

As my avid readers know I was excited to release a book about the California probate process a couple months back. In all honesty sales have been better than expected. It took a while to get the Kindle format working but it should be up and running now. Go to Amazon and check it out.

Probate Book Cover

Here is the table of contents which gives you an idea of the topics covered:

Table Of Contents

Author Introduction. 3

Experience of Meissner, Joseph & Palley Law Firm
In Probate. 3

Types Of Probate. 3

Common Issues Faced By Practitioners In
Probate Process. 3

Is Probate Necessary?. 3

The People Involved In The Probate Process. 3

Timeline For The Probate Process. 3

Common Issues In The Probate Process. 3

Technical Terms Used In The Probate Process. 3

Common Terms Used In Probate. 3

Basic Facts About The Probate Process. 3

Letters In Probate And Filing Claims. 3

Probate, Taxes And W-9 Forms. 3

Selling Probate Property And Assets. 3

The Final Petition In The Probate Process. 3

The Role Of An Attorney In The Probate Process. 3

Costs In Probate Cases. 3

 

Here is the terminology list from the book as a sneak peek:

Terminology

  • Administrator – Person named to administer the probate if not named in will
  • Court Reporter – The person who types notes of what is said in Court and does not exist in all probate court rooms
  • Decedent – The person who died
  • Executor – Person named to administer the probate in the will
  • File Examiner – Is typically an attorney, but sometimes a non-attorney, who works at the court and advises the Judge on each case
  • Judge – The probate Judge is a Superior Court Judge who is in charge of the process
  • Lawyer – Typically the Personal Representative is represented by their own legal counsel
  • Personal Representative – Includes Executor, Administrator and Special Administrator
  • Probate Referee – State appointed official who appraises probate assets
  • Special Administrator – Person named to act on behalf of the estate on an emergency or temporary basis

 

 

Heggstad petition v. full probate after death of first spouse

I spoke to a potential new client recently who has a very common scenario. For this blog we will call them Mr. and Mrs. Smith.  He and his wife have a trust from the early 1980’s.  It appears to be a fairly standard trust. Along with it they also have “pour over” wills as most people have.  Mrs. Smith died recently with an asset out of their trust.

In about the year 2000 they bought a home together in the Sacramento area.  They bought the home “as community property.” That is the deed says “John Smith and Jane Smith, husband and wife as community property.”  Unfortunately the CP with right of survivorship law had not come into effect in that year. Thus California did not yet have an automatic community property ownership option yet.

As a probate attorney when I see husband and wife as community property, but without the words “with right of survivorship” I immediately think of doing a spousal property petition. That is an abbreviated petition in the probate court to transfer the property from one spouse to another.  It is a pretty quick petition and fairly routine when the property is titled in community property. However, a spousal property petition does not work when there is a pour over will. In this case Mr. and Mrs. Smith have the standard pour over will to their trust. Spousal property petitions only work between a husband and a wife; not a trust. So the SPP will not work. What other options does Mr. Smith have?

I believe his only two options are:

  1. A Heggstad petition pursuant to California probate code 850; or
  2. A full probate.

I have blogged other times about the Heggstad petition so I’ll keep it brief here. A Heggstad petition is a way of transferring property to a trust by showing that the decedent intended for the property to be in a trust. With real estate the intent should be shown by a specific writing. The most common writings are: 1) a specific listing of real estate on a schedule of assets, 2) a specific mention of the property in the trust document (i.e. “I give the property located at 1234 Main Street to my son Bob….”), 3) a signed but unrecorded deed, or 4) other written statements such as a letter to an attorney asking for a deed to be prepared. If successful a Heggstad petition should be done in about 8 weeks. The result will be a court order that is recorded in the county recorder’s office.

In this case there is none of the above written intent. I thus think the odds of a Heggstad petition working are probably 50%, at best. In fact, 50% is really the most generous I can be and that’s hoping the Judge is feeling generous. To increase our chances of success I would have Mr. and Mrs. Smith’s children sign consents to the petition and file those with the court.

The other option is a full probate. While the above only supplies about a 50% chance of success a full probate is a 100% chance of success. Unfortunately it costs more money and takes longer. In this case it would probably cost Mr. Smith about double the money that a Heggstad petition would.  Also a full probate is 7 months MINIMUM in time. However, the property can be sold during probate so upon the appointment of Mr. Smith as Executor, in about 6-8 weeks, he can close escrow. That is, 1/2 of the house would be owned by the estate and 1/2 would be owned by him as an individual.

Other options for Mr. Smith to consider?  One option I offered was to file the Heggstad petition and a full probate simultaneously. The advantage is that if the Heggstad petition is not successful the probate is already filed and ready to be approved. The added cost is probably $1,000, or so, for the initial probate costs (filing fee with the court and publication in the newspaper). If the heggstad petition is successful then the full probate would be dropped. On the other hand if the Heggstad is not successful then we move forward with the full probate.

It is unfortunate that Mr. and Mrs. Smith did not deed the property into their trust while Mrs. Smith was still alive.  However, they didn’t so, at this point, it is what it is. We need to clean it up so that Mr. Smith can get the house sold.

If you have a situation, like Mr. Smith, contact us to discuss YOUR best option!   -John

FREE CALIFORNIA PROBATE BOOK

You can buy it on Amazon if you prefer. Or email me for a PDF copy of my book HOW TO LIVE AND DIE WITH CALIFORNIA PROBATE (A Layman’s Guide to Understanding Probate in California) It has been printed and is in my hot little hands! If you want to pick up a copy at my office let me know!  If you are in a position of being an administrator or executor of a California probate please contact me for a free copy of this book.  I can email you a copy today!

front

 

Table Of Contents

Author Introduction. 8

Experience of Meissner, Joseph & Palley Law Firm
In Probate. 10

Types Of Probate. 14

Common Issues Faced By Practitioners In
Probate Process. 18

Is Probate Necessary?. 22

The People Involved In The Probate Process. 26

Timeline For The Probate Process. 30

Common Issues In The Probate Process. 34

Technical Terms Used In The Probate Process. 39

Common Terms Used In Probate. 42

Basic Facts About The Probate Process. 46

Letters In Probate And Filing Claims. 50

Probate, Taxes And W-9 Forms. 53

Selling Probate Property And Assets. 57

The Final Petition In The Probate Process. 62

The Role Of An Attorney In The Probate Process. 65

Costs In Probate Cases. 70

Pharmaceutical drug class action lawsuits in PROBATE COURT

We have handled many pharmaceutical drug class action and personal injury lawsuits in probate court.  Recently we have represented many people pursuing settlements in the Actos liver medication lawsuits. We are not the class action or personal injury lawyer. We are the probate attorneys who help when the person who took the medication passed away.  We have significant experience representing individuals in these cases and also have worked closely with the class action lawyers when asked.  If you lost a loved one and are pursuing a pharmaceutical drug class action or personal injury lawsuits, and need probate court help, please contact us.  We can help with probate, conservatorship or guardianship situations.  Likewise, if you are a class action or personal injury lawyer needing help for your California decedents or disabled clients we can help you. We are efficient, friendly and experienced. Contact us today to discuss how we can help YOU!  -John

 

Notifying the California Department of Health Services of a death

How does one go about notifying the California Department of Health Care Services (aka: “Medi-Cal”) of the death of a friend or loved one? You can have an attorney help you or just go to this handy link on their website.

Once there click on NOTICE OF DEATH.

Another screen is brought up where you put in a whole host of information about you, the decedent, their assets, etc….  Just fill it all in, honestly of course, and then wait for Medi-Cal to get back to you.

Don’t forget Medi-Cal generally will take a back seat to other costs of administration in a probate. So a large Medi-Cal bill does not mean you should just walk away from a piece of real estate. We can often get our client’s MONEY IN THEIR POCKET. Medi-Cal just wants the house sold and are ok to get paid after probate. The key is talking to an experienced probate attorney.

If you want to talk about Medi-Cal claims, probate, or any related subjects please contact us.  -John

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