Irvine, California Attorney, Mark W. Bidwell

Key Questions

Is probate really necessary?

How Long will it take?

How much are the attorney fees?

Probate Practice

The personal representative or executor of the Will does not pay the legal fees. Legal fees are paid out of the estate and are collected at the end of probate. The amount of attorney fees is set by California law.

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 assets
6. Prepare inventory and appraisal
7. Notice 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. 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”).  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 in the California Probate Code.  The 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 a "Heggstad 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.

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: 949-474-0961

Email address: Attorney@BidwellLaw.com

Law firm of Mark W. Bidwell, A Law Corporation

Irvine Probate Attorney

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

"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:

•  Anaheim
• Cypress
• Fountain Valley
• Garden Grove
• Huntington Beach
• Irvine
• Lake Forest
• Laguna Beach
• Laguna Hills
• Laguna Woods
• Los Alamitos
• Midway City
• Newport Beach
• Newport Coast
• Orange
• Rossmoor
• Santa Ana
• Seal Beach
• Stanton
• Sunset Beach
• Surfside
• Tustin
• Westminster