EXPERTS AND SPECIALISTS

Every “probate lawyer” you talk to says they are a probate “expert” or a probate “specialist.”  Of course few really are.  When I say that I mean it because 1) I was a former Sacramento Bee probate “expert” when I wrote for the Bee and 2) I am a Certified Specialist in probate law as determined by the State Bar of California.

MY EXPERIENCE

I often tout how many probates I have done to show my experience. I have probably done 700 probates at this point in my career. I do not count but that’s a pretty reasonable guess. It could be more.

OTHER EXPERIENCE

However, with all my accolades, degrees, classes I have taken, classes I have taught, and all of my probate cases I have completed there is one thing I can not say. I have never worked at the probate Court as an attorney.  Frankly speaking I do not know of any, until now, in the

Sacramento region who have this experience.

OUR NEW ATTORNEY

On Monday June 10, 2013 the law offices of Meissner, Joseph & Palley are pleased and excited to announce the addition of Evelyn E. Skall to our team.  Evelyn has spent the majority of her 25 year degree working at the Sacramento County probate Court where she has advised the Judges on their cases. She has probably worked on countless thousands, if not tens of thousands, of probate cases. She has dissected cases filed in all types of probate matters. Now she will be working for us doing

the same thing… except without advising the Judge of course.

CASE REVIEW

Ms. Skall will be reviewing our probate Court filings for accuracy and to make sure it meets up with the specifications the Court requires. Even though I have filed 700 probate cases the Court attorneys occasionally find stuff that could have been done differently. We will now have that Judicial type review IN OUR OFFICE!

WHAT THIS MEANS FOR OUR CLIENTS

I believe that our probate clients will be getting the best possible care and accuracy of any law firm in California.  With my experienc

e representing clients, coupled with Ms. Skall’s courthouse experience, we will be second to none!  Our filings will be even more accurate than before!  Plus, since probate cases are based on the statutory fee schedule it won’t cost you more.

CONCLUSION

The addition of Evelyn E. Skall to the team at Meissner, Joseph & Palley, Inc. will make us second to none in California for probate attorneys. Our work will be efficient as always but even more accurate than before! Also, as stated above, since attorney fees in standard probate cases are based on the statutory fee schedule our clients won’t pay any more for this incredible level of service!

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Introduction

I was on a CourtCall today appearing live, though by telephone, in the Lake County probate Court.  As I waited my turn to speak to the Judge I thought about what everybody does while waiting for a probate Court hearing to start…

I daydreamed about what I had done to be ready for today’s hearing and how that would make for a great blog post.  That is, as I semi-listened to make sure my case wasn’t called, I confirmed to myself all of the things that I had done to improve the odds of my matter being approved today and not being delayed.

Before filing

Before even filing one document I am thinking ahead. Where are potential threats?  In this case, I realized, my client lives out of state. Any time you have an out of state Administrator or Executor the Court has discretion to impose the requirement of a bond. That is, the probate Judge decides if there will be a bond or not. This is just one example of the type of thing I think about BEFORE filing the petition for probate. If you want more information about surety bonds here is a link to a bond application for a California probate case.

Before the Court Date

So once you have a Court date then what? Again we try to think ahead! First of all we make sure all the procedural matters get done on time. A probate is like a high hurdles race so plan ahead before each hurdle arrives!

- we publish in a local newspaper of general circulation;

- we send notice of hearing to all entitled to notice;

- we send the proposed order to the Court;

- we checked for calendar notes.

On the Court Date

The morning of the Court hearing I always review my file to make sure I am familiar with the basic facts. I do not want to be surprised if the Judge asks me a question. I am the attorney for the proposed Executor so I really should know the answer to any question the Judge asks. 

After the Court Date

Once Letters Testamentary issue it is on like Donkey Kong! It is time to take action and get the probate MOVING… and working toward the next probate Court hearing date!

-John Palley

Anytime you need a probate and estate planning attorney for matters anywhere in California contact John Palley.  A Certified Specialist in Estate Planning, Trust and Probate Law as determined by the State Bar of California Board of Legal Specialization.  Contact by phone 1.800.965.1106 or email: john@californiaprobate.info

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“I can get a trust done for $500, on the back page of Rolling Stone magazine, so why should I pay you $2,000?”

My answer is simply, “we will find out after you die how good your five hundred dollar estate plan is.”

I mean that with all sincerity. It MIGHT be just fine. On the other hand I have seen some horrendous trusts ($500 or more) that I have had to clean up after death. Some so-called “estate planning attorneys” create huge messes after death with poorly written and poorly executed documents.

Get it done right before you die so your family doesn’t have to deal with this!

On the other hand, if you are reading this blog after a loved one has died you have come to the right place. We clean up bad estate plans, after death, all the time!

Cleaning up a bad estate plan after death usually requires much more work and much more money than if things had been done right in the first place. However, I have seen so many bad estate plans I have had a lot of experience cleaning them up.

There are many different alternatives for cleaning up messes.  The most common fixes to estate planning messes:

1) Heggstad petition to get assets into the trust.

2) Petition for succession to real property worth less than $150,000.

3) Probate code 13100 small estate affidavits for personal property.

4) Spousal property petitions when one spouse dies.

5) Full probates in the worst messes.

Contact me to discuss how we can best clean up the mess you find yourself in!

-John Palley

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Today I will be speaking to a group of paralegals at the Sheraton in downtown Sacramento on the probate process from start to finish. Here is a summary of the outline. If you want my full outline just ask and I’d be happy to share it!  -John

1. HOW TO FILE AN ESTATE IN PROBATE COURT 9-9:45 John Palley

1. Distinctions Between the Modest and Larger Estate
2. The Estate Timetable and What Needs to Be Done
3. Steps for Proving the Will
4. Steps for Challenging the Will

1. WORKING WITH EXECUTORS AND ADMINISTRATORS 9:45-10:30 John Palley

1. Duties of Executors or Administrators During the Probate Process
2. Paralegal Contact With Executors or Administrators
3. How Misconduct and/or Removal of Executors or Administrators is Handled
4. Compensation
5. Special Administration
6. Duties of the Attorney for the Executor – Who is the Client?

1. HOW TO PREPARE AND FILE THE INVENTORY 10:45-11:45

1. ADMINISTRATION OF THE ESTATE 12:45-1:30

1. Creditors, disclaimers, cash management

1. ETHICAL PERILS IN THE PROBATE PROCESS 1:30-2:30

1. Ethics and avoiding malpractice

1. DEALING WITH SPOUSE’S ELECTIVE SHARES 2:45-3:30

1. Homestead, family allowance, and other under utilized tools

1. UNDERSTANDING THE LAWS OF INTESTACY 3:30-4

A. Who gets what when if there is no will

VIII.CLOSING THE ESTATE 4-4:30

1. Final accounting and ending the case

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Why do you or your lawyer sometimes want or need a continuance in your probate Court?

There are some cases where a continuance is needed. For example, I am appearing today, via CourtCall, in Los Angeles Superior Court to ask for a continuance on a case.  The case is extremely complicated and we have not been able to supply enough information to the Court for them to approve our petition. Though it’s likely the Judge may not grant it, in the end, there is no harm in getting a continuance to re-evaluate the options.

There are other cases where a continuance is a good idea for various reasons. Sometimes it’s a strategic thing where there is a reason to slow the case down. Or maybe it’s a cautious thing to make sure that every last tax issue is solved and every last creditor is resolved. Occasionally there are wild cards and thus a continuance is good to clear the air.

Is a continuance a bad thing?

In my opinion a continuance is rarely a bad thing. Yes, there are times when the attorney has made a mistake and yes that would be a bad thing. However, more typically it’s because the Court needs more time to review, the Court wants to give opponents time to file objections or the Court wants you to beef up your case regarding particular issues.

Do you have control over the decision?

Usually. I say usually because most often it is the client’s decision to get the continuance. However, when the attorney is not able to get the client’s desires then they typically will make the decision for them. A continuance is always safer than letting the Judge rule against you!

Can a continuance be had merely by a person showing up in Court and asking the Judge?

Sometimes. You never want to rely on this as there are some Courts who will not grant the continuance merely by the request of an objector. Thus you may need to file something in writing which would likely create the need to pay a filing fee (currently $435 in California). However, you need to be careful about making sure that it is not construed as an objection in case there is a no contest clause in the will or trust.  Thus a “request for continuance” might be a softer way to label the document.

If you have questions about seeking continuances in probate or trust matters ask me. I am happy to answer!

-John

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I came across an interesting case lately that I thought I would share. Though the information will be a public record, in Court, I have modified the names, dates and particulars for privacy purposes.  Here are the facts:

- Harold wrote a standard will (some call it a “simple will” or a “last will and testament”) in 1995 giving everything to Wendy.

- Harold and Wendy got married in 1996.

- Debbie was born to Harold and Wendy in 2001 and is thus a minor (i.e. under 18).

- Harold inherited property from his dad in 2010.

- Harold has personal debt, in his name alone, of approximately $50,000.

- Harold and Wendy lived in the inherited property.

- Harold died in 2012.

For simplicity let’s just say the home that Harold inherited from his dad is the only asset we are dealing with. Let’s assume that Harold and Wendy had no other assets of significance.

At first blush I was going to advise that Wendy file a spousal property petition. That would be a little less of a target for Harold’s creditors than a full probate but would clear title to the house. That is, Harold’s will says Wendy gets 100% of the assets.

Aha!  Ahahhh!  Debbie, the daughter, is a pretermitted heir or omitted child. That is, when Harold prepared his will he gave everything to Wendy. However, the law assumes that if Debbie had been alive he would have wanted to give something to her.

In fact, the law presumes that with separate property (in this case it’s inherited so it’s separate and not “community”) the law assumes Harold would have wanted to give his one child 50% and his wife 50%.

The fact that Harold has a will doesn’t matter. It’s as if the will is invalid as to the distribution paragraph. The law re-writes that to make it 50/50.

Thus, the inherited property is in Harold’s name and Wendy is forced to file a full probate. In that probate she only gets 50% and Debbie gets the other 50% which will be held until she is 18.

A full guardianship may be required by the Court to protect Debbie’s interests.

Harold’s creditors will now have an easy target to go after as a full probate creates an easy pool of assets for creditors to attack.

A probate is much more expensive than a spousal property petition.

If only Harold had written a new will after Debbie was born!

Situations like this are real and they happen every day! Get your estate plan made while you are healthy as you never know what will happen. If it’s too late, and you are cleaning up an estate after death, contact me to walk through all the options. Sometimes there are hidden answers that are not obvious on the surface.

-John

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A huge problem we have encountered more and more lately is changing the mortgage from the deceased’s name into the family’s name. That is cases such as two I have right now where the property is in the deceased spouse’s name. I can easily transfer the title of the house by a spousal property petition. However, what about the mortgage? It’s in the decedent’s name too. If the Court order transferring title isn’t enough then we can piggy back it with a petition for letters of special administration. That petition can, and should, be limited to talking to the mortgage company about the mortgage. Court’s are not inclined to approve petitions for special administration unless they are emergencies and/or very limited and focused. In our office we do these procedures a lot, in counties throughout California, and can guide you through hte process. The key is knowing your options. Talk to an experienced attorney before you file!  -John

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