714-846-2888 to schedule an appointment
Legal Representation in Probate Court in Will Contests and Undue Influence. California law states the execution or signing of a will, trust or amendment is ineffective to the extent the execution was procured by duress, menace, fraud, or undue influence. Legal representation is needed to defend against these charges or to prove the existence of duress, menace, fraud undue influence. In California allegations of undue influence and incapacity are often made against the primary care giver who becomes the successor trustee of the Trust or executor of the Will.
Probate Administration of Estates. After death transfer of assets is under the supervision of the Superior Court of California in the probate court. The transfer of title for real estate property will take about one year and is open to the public. The cost in legal fees and court costs is about 5% of assets transferred.
The probate process is procedural in nature. A petition is filed. Heirs are noticed in writing. The public is noticed by publication in a newspaper. A bond is obtained. Letters of administration are issued. Assets are marshaled and sold. An accounting of all actions and transactions is made to the court. A court order for distribution is obtained and the probate closed.
Legal representation saves time and effort. The amount of fees an attorney is paid is fixed by California law based on total assets. Legal fees are not paid until the probate is closed and only by court order.
Probate is the process of after death transfer of assets and payment of debts under the supervision of the Superior Court of California. The process takes about one year and is open to the public. Major procedures in the probate process are:
An estate is all property owned by the person who has died (the “decedent”). A decedent’s property includes life insurance proceeds on life insurance policies owned by the decedent.
Administration of an estate is paying the debts of decedent, paying income taxes owed by the estate and decedent, paying estate taxes owed by the estate and transfer of legal title of property from the estate of the decedent to his or her beneficiaries or heirs. A beneficiary is a person who inherits when there is a Will or Trust. An heir is a person who inherits when there is no Will or Trust.
The person who administers the estate is identified in the Will as the executor, in the Trust as the Successor Trustee or in the event no Will or Trust exists California Probate Code prioritizes who serve as administrator, first is spouse, if not the spouse, then the children, and so on.
Transfer of real estate is governed by the laws of the state in which the real estate is located. How to transfer legal title of assets is dependent upon how legal title is held and the size of the estate. Transfer of legal title is done by Trust, probate, small estate declaration, contracts with designated beneficiary, joint tenancy or pay on death accounts.
Funding a Trust Post Death
To fund a trust or transfer property into a trust after a person has died either a "Heggstad Petition" or a "Section 850 Petition" is needed.
In the Estate of Heggstad (1993) 16 Cal.App.4th 943, 20 Cal.Rptr.2d 433, the court determined a written declaration of trust by an owner of real property was sufficient to create a trust. The Heggstad court did not require a separate deed transferring the property to the trust.
So a trust may be funded after the death of a property owner.
Sometimes this is not as easy as it would appear. For example the San Diego Superior Court requires the following in the petition:
1. The vesting of each asset at all relevant times;
2. Evidence that each asset was placed in trust;
3. Evidence of every transaction affecting title to each asset in question during the relevant time.
4. Where a transaction takes legal title to an asset out of the trust or occurs when title is not held by the trustee, evidence to overcome the inference that the Trustor intended that the transaction be considered a non-trust transaction.
5. The value of each asset to be transferred.
Section 850 Petition
An 850 petition is filed pursuant to California Probate Code Section 850 by the Trustee who has a claim to real or personal property, title to or possession of which is held by another. The “another” is usually a bank or banks with accounts in excess of $150,000. Otherwise a Section 13100 declaration would be more expedient and cheaper.
Personal Service is needed on the entity or person having possession of the account.
California Probate Code Section 851 (a)states: “At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure [personal service] on all of the following persons where applicable:...(2)Each person claiming an interest in, or having title to or possession of, the property.”
Service by mail is needed on the beneficiaries of the trust
California Probate Code Section 851 (b)(a) states: “At least 30 days before the time set for the hearing on the petition, the petitioner shall cause notice of hearing to be MAILED to all of the following persons:(1) All trustees (2) All beneficiaries...”
Independent Administration of Estates Act (the “IAE Act”), Probate Code §§ 10400 et seq.
The IAE Act allows you to cut through some of the red tape.
Probate Code § 10500. (a) Subject to the limitations and conditions of this part, a personal representative who has been granted authority to administer the estate under this part may administer the estate as provided in this part without court supervision, but in all other respects the personal representative shall administer the estate in the same manner as a personal representative who has not been granted authority to administer the estate under this part.
But you will still require court supervision for the following acts.
Probate Code § 10501. (a) Notwithstanding any other provision of this part, whether the personal representative has been granted full authority or limited authority, a personal representative who has obtained authority to administer the estate under this part is required to obtain court supervision, in the manner provided in this code, for any of the following actions:
(1) Allowance of the personal representative's compensation.
(2) Allowance of compensation of the attorney for the personal representative.
(3) Settlement of accounts.
Mark W. Bidwell, Attorney at Law and CPA, Inactive. Office is located n the City of Irvine, County of Orange, California.
Telephone number: 714-846-2888
Email address: Attorney@BidwellLaw.com
Law firm of Mark W. Bidwell, A Law Corporation
Irvine Probate Attorney
Typical probate issues
Immediate Post-death Activities
Probate Jurisdiction and Procedure
Independent Administration of Estates
Inventory and Appraisal
Claims of Creditors
Actions By and Against Personal Representative
Collection and Management of Estate Property
Sale, Lease, and Encumbrance of Estate Property
Estate and Income Taxation
Determining Entitlement to Distribution
Fees and Commissions
Accounting, Distribution, and Discharge
"Letters": means letters testamentary, letters of administration, letters of administration with the will annexed, or letters of special administration.
"Personal representative" means executor, administrator,
administrator with the will annexed, special administrator, successor personal representative and public administrator. The person authorized by the court to represent the decedent in probate actions before the court.
Office in Irvine, California. Serving the cities of: