California Probate Legal Questions

It is possible but needs to be done very carefully. I am doing this exact type of transaction now in a probate case.  The estate needs to borrow enough money, if not enough other assets, so that the equity in the house and other assets gets distributed equally.  You should work with a very experienced probate attorney on this.  ... Read More

An attorney is NOT required. I would encourage you to talk to a higher up at the bank. I have pasted California probate code 13105 below. Note section (b) provides for attorney fees if the bank forces you to get an attorney. You might show that code section to them. Hopefully they will see the light!  Good luck.   13105. (a) If the requirements of Sections 13100 to 13104, inclusive, are satisfied: (1) The person or persons executing the affidavit or declaration as successor of the decedent are entitled to have the property described in the affidavit or declaration paid, delivered, or transferred to them. (2) A transfer agent of a security described in the affidavit or declaration shall change the registered ownership on the books of the corporation from the decedent to the person or persons executing the affidavit or declaration as successor of the decedent. (b) If the holder of the decedent's property refuses to pay, deliver, or transfer any personal property or evidence thereof to the successor of the decedent within a reasonable time, the successor may recover the property or compel its payment, delivery, or transfer in an action brought for that purpose against the holder of the property. If an action is brought against the holder under this section, the court shall award reasonable attorney's fees to the person or persons bringing the action if the court finds that the holder of the decedent's property acted unreasonably in refusing to pay, deliver, or transfer the property to them as required by subdivision (a).... Read More

You are smart to consider a living trust. A trust is a great way to save your loved ones time and money by avoiding probate.  Attorneys are different throughout the state but I would think $1,000 - $5,000 for an experienced estate planning attorney.  This would be the entire trust package which is a trust, will, financial power of attorney, medical directive, deed to the house, letters to the banks and a few other misc documents. Good luck selecting the best attorney for the job!  -John... Read More

California law generally requires that a will be signed by two witnesses, but there are exceptions that may allow the will to stand depending on several factors that are used to determine reliability. If the will isn't valid it would be distributed through intestate succession. If she did not remarry her assets would be distributed to her children. In any event her estate will have to be probated before assets can be distributed. This can be done relatively quickly if it is a small estate and will take a bit longer if she has significant assets in the estate. Was the witness also a beneficiary of the will? Please feel free to contact me if you would like assistance with this. Thanks,Jon... Read More

I had this exact thing happen in a case a couple years back. We just went to court for a court order that the two trusts were one in the same and the bank released the money.  We did it as a petition for instructions.  It was pretty straight forward and we had no problem first crack!  I can help in any county in California so if in California have John call me.  Have a good day. -John... Read More

If you talk to enough attorneys you might find one that would take your case for a discount. However, will they be experienced?  Will you really save money in the long run? Since you have already seen what can happen if you do probate without an experienced probate attorney I would encourage you to find an experienced probate attorney. For example, look for someone who is a certified specialist in estate law. There are simply too many pitfalls that can come to you. Failure to file things properly can lead to delays as you have already learned. Failure to file some things (like a parent to child exclusion form) can lead to increased taxes for you. I know some of us will front costs in some cases and get paid at the end. In some rare cases we will even accept a promissory note to get paid back our fees and costs in the future. However, you would need to talk to an attorney about the details of your case. I do probate work throughout California if you want to chat about your case with me.  -John... Read More

Hi Johnny, You certainly may have a claim against your uncle. How long ago was the house sold and how old are you now? You aren't likely to be held to anything that you signed as a minor and the statute of limitations on your claims was likely tolled during your childhood.  Thanks,Jon... Read More

It is certainly a good idea to have back up plans in an estate plan. If you have a will then a will codicil can be used.  This is essentially an amendment to the will. A codicil requires the same formalities as a regular will to be valid. That is two witnesses but NO notarization.  If you have a trust then you would need to do a trust amendment.  Typically trust amendments are notarized. Safe travels.  -John... Read More

You may have a problem with the statute of limitations, but it is definitely worth exploring because when dealing with fraud, the statute does not typically begin to run until you know or should know (through the exercise of reasonable diligence) that you were defrauded. When and how did you discover that you were owed more than was paid to you? Thanks,Jon... Read More

Who hired a lawyer?  If you are the executer of the will, have you seen a lawyer regarding this matter?  Did your grandmother have a Trust? It would seem like the best thing to do would be to speak to an experienced estate planning lawyer who can determine what needs to be done with any assets that your grandmother may have had.... Read More

She will not be fined and the will does not become invalid. However, if someone can prove damages from the will not being filed then she could get sued for those damages. However, if she is the sole beneficiary of the will its hard to imagine a damages situation. In my opinion it's always a good idea to file the original.... Read More

I am sorry for your loss. A spousal property petition would likely work. However, if under $150,000 you could also do a probate code 13100 small estate affidavit. There are free forms on the internet for that. The key for either is that you have to be entitled to the money. That is, if there are no kids it's yours. If there are kids then it's your if it's "community property." If it's considered "separate property" you could have to share it with the kids. If not sure I would encourage you to talk to an attorney before doing a small estate affidavit. If you decide to do a spousal property petition I also would encourage you hiring an attorney as a good probate attorney makes the process much easier. ... Read More