Huntington Beach, California Attorney, Mark W. Bidwell

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. The 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 Procedures

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:

1. File petition with the Probate Court
2. Provide notice to all heirs and beneficiaries
3. Publish in local newspaper public notice of petition
4. Attend court hearing and obtain letters of authority
5. Marshall (gather) assets
6. Prepare an inventory and appraisal
7. Provide notice to third party creditors, pay or deny creditor's claims and if necessary sell assets
8. Report and account for assets to the court and obtain approval of the court for all actions taken by the personal representative
9. Obtain a court order to distribute assets to heirs
10. File ex parte petition for final discharge and order to close probate

An estate is all property owned by the person who has died (the “decedent”). The probate estate is a subset of the estate and includes only those assets that require transfer by order of the probate court. An estate includes life insurance proceeds on life insurance policies owned by the decedent.

Administration of an estate is the payment of the debts of decedent, payment of income taxes owed by the estate and decedent, payment of estate taxes owed by the estate and the transfer of legal title of property from the estate of the decedent to his or her beneficiaries or heirs. 

The person who administers the estate is identified in the will as the executor, or in the trust as the successor trustee. In the event no will or trust exists, California Probate Code prioritizes who serves as administrator of the decedent's probate estate; first is spouse, if not the spouse, then the children, and so on.

Funding a Trust Post Death

To fund a trust or transfer property into a trust after a person has died is by either a "Heggstad Petition" or a "Section 850 Petition."

Heggstad Petition

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.

Notice

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.

   (1) Allowance of the personal representative's compensation.

   (2) Allowance of compensation of the attorney for the personal representative.

   (3) Settlement of accounts.

Overview of Probate Administration

In California a set of laws determine how a decedent’s assets are transferred and how a decedent’s debts are paid. This set of laws is referred to as the “Probate Code.” Courts that enforce the probate code are referred to as probate courts.

Reading of the Will

A decedent’s assets are either in an “intestate estate” or a “testate estate.” A “testate estate” is created when prior to death, a decedent creates a writing that identifies persons who are to receive assets of the estate. Examples of writings are wills, trusts and deeds. 

An “intestate estate” is created when there is no writing or document. Without a writing, persons who are to inherit from the estate are determined by California probate law. The law has priorities for inheritance. First to inherit is the spouse, then if no surviving spouse, surviving children or grandchildren inherit. If no spouse or decedents survive, then parents of the decedent inherit. If no parents survive, then surviving siblings inherit and so on.

Probate administration begins with the filing by a person of interest a petition for the court to appoint a personal representative of the decedent. 

Upon receipt of the petition the court sets a date for a hearing to appoint the personal representative. The person who filed the petition must provide notice of the hearing to heirs by writing and notice to the general public by publication in a newspaper. 

At the hearing and if no one objects, the personal representative is appointed and “Letters” are issued. The letters are signed and certified by the court. The “Letters” authorize the personal representative to gather all assets and to pay all just debts.

After the “Letters” are issued the personal representative has four months to identify all assets and have those assets appraised. At the end of four months and if all creditors have been paid the personal representative files a second petition.

This second petition provides an accounting of all transactions in the estate, a proposal for distribution of assets of the estate, for authority to pay the personal representative’s fees and for authority to pay attorney fees of the estate. Upon receipt of this petition the court set a date for hearing on the second petition. At the hearing and if no one objects, the court approves the accounting, orders for the distribution of the estate’s assets and orders payment of fees.

Probate is section of the California law that directs how assets of a decedent are to be distributed and how creditors are to be paid. Probate administration is under the supervision of the probate court. Probate takes about one year and requires at least two court hearings.

This web page was authored by Mark W. Bidwell, an attorney in Orange County, California, who specializes in probate and trust law. Mr. Bidwell’s office is located at 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649. Phone number is 714-846-2888. 

 First courthouse in Orange County, California

Typical probate issues

• Immediate Post-death Activities
• Succession
• Nonprobate Transfers
• Probate Jurisdiction and Procedure
• Summary Administration
• Spousal Set-Asides
• Special Administration
• Will Contests
• 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
• Ancillary Administration
• Trust Proceedings

 

　Three options to open probate with judicial council form

1.  Probate administration: no will

2.  Probate of Will and for Letters of Administration with Will Annexed: there is a will but the proposed executor is not named in the will.

3.  Probate of Will and for Letters Testamentary: there is a will and the proposed executor is named in the will

"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:

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