Where is home for this probate?

I was recently contacted by a potential client who lived in California. They had lost a loved one and wanted to know about probating their loved one’s will. That all sounds simple so far but wait….

Like many their loved one had set up a will and trust in the US and put some, but not all, of their assets into the trust. This is a common problem so please heed this public service message: FUND YOUR TRUST WHILE YOU ARE ALIVE!

Their loved one further complicated the situation by moving to another state in the union and then moving to a foreign country which is where they resided at death.

Can a California probate attorney help?

Wellllllll, it’s complicated.

Maybe.

Two different thoughts came to me:

  1. Full probate, or
  2. Heggstad petition.

The full probate option then begs the question where would they file. Certainly, if they have assets in the foreign country then probating the will there is likely required. From there an authenticated copy of the will and order admitting the will to probate (i.e. accepting it as valid) could be brought back to the US to file. Where in the US?

If there is real property in a state generally an ancillary probate would need to be filed there.  So, if the decedent had a house in South Lake Tahoe then an ancillary probate could be filed in El Dorado county, California.  From my other blog posts you know what ancillary administration is, but in case you forgot, in California ancillary administration is defined as “proceedings in this state for administration of the estate of a nondomiciliary decedent.” (California Probate Code §12501). As you also know from other blog posts, of mine, an ancillary probate is basically the same as a full probate in California. It’s not abbreviated.

However, what if there is a bank or securities account worth more than $150,000? Where then? California is the exclusive jurisdiction for assets that are in California. Where is the bank account? Is it any state the bank has a branch? Is it the state of home office of the bank? Is it the last state the person resided before going abroad. I would say you could make any of these arguments and likely be successful.

This doesn’t say what law will be applied, for example, if a person dies without a will. That’s a discussion for another day.

The key is to find an experienced probate attorney and start there. If California isn’t proper an experienced California probate attorney will tell you that and likely give you a suggestion on what state is proper and may even have an attorney to refer you to!

Oh ya, I wanted to also talk about option 2 which is doing a Heggstad petition. I believe if the trustee resides in California then the principal place of trust administration is California. I would thus say if the facts would work for a Heggstad petition (unfunded trust) then that might be a way to do handle the probate here in California. Again, working with an experienced California probate attorney is key.

Best of luck.

-John

Big delays in California probate courts

Even if you have the best California probate attorney you can get a bad court date. In most cases there are two court dates given. One at the beginning when you file the Petition for Probate or Petition for Letters Testamentary or Petition for Letters of Administration. The second date is at the end of probate when you file your accounting which is often called a First and Final Report.

I always ask the Court to actually follow the law and give my clients a court date within 30 days as provided in California probate code 8003.  That section provides, in part, “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.” However, many courts ignore the law and still file 2 or 3 months out.

So the first court date does at least have a law that the courts are supposed to follow. They may or may not follow it but at least there is hope for a good court date. The final report, as well as any other petitions that may be needed, there is no help in the probate code. So if you file a petition for heirship, a petition to confirm sale of real property, or any other such petition your hearing could be 2, 3 or more months out.

So, back to the final petition. I filed a final petition on 3/20/18 in San Diego county and was given 7/3/18 as my client’s court date. 3 and 1/2 months out! To me this is shocking and unacceptable. Perhaps the legislature can do something!?  The citizens of California, who have lost a loved one, should not have to wait MONTHS to end their probate.

Maybe we need more funding for the Courts!? Maybe we need to improve procedures!?  I don’t know but we need something to help our clients!

-John

Highway robbery and costs of probate publication

I file a lot of probates each year throughout the state of California. Just off the top of my head I think I have open probates right now in Los Angeles, San Francisco, Alameda, San Diego, Riverside, Sacramento, Placer, Orange, El Dorado, Ventura, Sonoma, Fresno, Kern, Amador, San Bernardino, Sutter, San Joaquin, Contra Costa, Butte, San Mateo, Santa Clara, and I am sure I am forgetting a few. In each probate case we have to publish in a newspaper that is adjudicated with the court and covering the place the decedent resided.

In many cities, particularly larger cities, there are several newspapers competing for the business. There might be a “cheapie” at $150 and maybe the local daily Goliath charges $750. In most of those cities we have papers we have found reliable who trend toward the low end if not the cheapest. Having been burned by newspapers who messed up publication we know how important a reliable newspaper is.

However, in some cities, mostly small cities or towns, the costs can be much much much more. I have seen publication costs in the $1,000 range a few times. However, today we got a quote on one that left me practically speechless. Well, I was speechless at first… and now am not as speechless.  This small newspaper replied to us with this email: “Total Due: $1,670.80 (includes affidavit after last pub date = emailed & mailed)”

WHAT? ONE THOUSAND SIX HUNDRED AND SEVENTY DOLLARS AND 80 cents!?  It must have been a typo, right? Even $670.80 would have been pretty unusual but $1,670.80 is by far the most I have ever seen a newspaper charge for publication of notice to petition a decedent’s estate.

They are, of course, the only newspaper adjudicated for that area of the state. They have an old fashioned MONOPOLY on publication in their area. They can charge whatever they want. The residents of the state of California are left to pay this usurious amount. The state of California legislature should really investigate this.

Plus, does anybody still read newsprint? Does it really make sense to continue this centuries old procedure of publishing in ink? Maybe it’s time to go digital!?

Come on California do better!

John Palley to speak at Placer Association of Realtors

PRESS RELEASE – John Palley to speak at PCAR again

Roseville, California.  John Palley will be the main speaker at the Placer County Association of Realtors   Lunch and Learn meeting on March 16, 2018. He will be talking about real estate sales in probate cases. His entire outline is below. Here’s the video for you to check out on YouTube.

 

Placer County Association of Realtors – March 16, 2018

By: John B. Palley, Esq.

I.          Introduction

  1.   John Palley – Meissner, Joseph & Palley
    1. John is 100% probate attorney
    2. Offices in Sacramento, Roseville and Davis
    3. Practice throughout California
    4. John Palley is a Certified Specialist in Estate Planning, Trust and Probate

B.             Real Estate sales in probate cases

II.         How Does a Real Estate sale become a Probate real estate sale?

  1. Most commonly there is no LIVING TRUST involved
  2. In some cases it’s avoided by a deed (joint tenancy or CP with ROS)
  3. Wills – Simple but some type of probate required when there is real estate
  4. Other Estate Planning (LLC’s, FLPs and QPRTs)
  5. Don’t forget title companies make the law but are not perfect

III.       What is Probate

  1. Generally speaking – Probate Court involvement
  2. Different options if assets worth less than $150,000
  3. Formal Probate is a 7 month (or more) process
  4. The probate code (pc) and the Judge create a formal process
  5. The PC lays out strict guidelines for collecting assets & dealing with creditors

IV.       Real Estate sales in Probate Administration

  1.   Million Dollar Question: When can you sell property in probate?
  2.   Listing Agreements – Probate form recommended but not required – 90 day ;o,ot
  3.   Probate Sales Form and Probate Advisory Form
  4.   Short Sales in Probate?  (Protecting other estate assets)
  5.   Key Point in Probate: IAEA v. Non-IAEA (PC 10452 v. PC 10309)
  6.   Selling Upside Down Houses in Probate – PC 10360 et seq.
  7.  Realtor should not be related to PR and not purchase estate property
  8.   Notice of Proposed Action and/or Court Confirmation (waiver is possible)
  9.   Document all marketing and pricing work very carefully
  10.   Commissions – same as any other real estate deal
  11.   Disclosures that are not provided in probate: The Transfer Disclosure Statement, The Seller’s Questionnaire, Earthquake Booklet, Earthquake Questionnaire, signature on the Natural Hazard Disclosure but the report needs to be provided, and Smoke Detector form.
  12.   Disclosure that are required in probate: Lead Based Disclosure, Data Base Disclosure (Megan’s Law), Water Heater Disclosure and strapping, and anything actually known.

VI.   Probate isn’t over yet

  1. Just because the house closes probate isn’t over
  2. Explain the rest of the probate process
  3. Creditors
  4. Taxes
  5. Final accounting

VII.   Probate Listings

  1. Some ideas for helping YOU get more probate listings

VIII.   Conclusion

  1. Working with a qualified probate attorney will make you look good.
  2. Contact me with any questions!

John B. Palley, Esq.

THINGS A PROBATE/TRUST LAWYER LIKES TO SEE IN A

REAL PROPERTY SALE

1)        Market Analysis Report in writing

2)        Probate Listing Agreement

3)        Marketing Plan

4)        Keep detailed log of all marketing and offers

5)        Use of Probate Sales forms

6)        Fax/email agreement once fully signed

7)        Title company information to attorney

8)        At least 20 (or 45 – trust) days for escrow unless discussed beforehand

9)        Final closing statement

10)  Plus, everything you would do for a “regular” client!

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

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!

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