California Probate Lawyer Blog

Of the many steps required when beginning to probate a California estate, publishing the notice of death remains a top priority. The California Probate Code provides the statutory basis for publication in section 8121 which says:

(a) The first publication date of the notice shall be at least 15 days before the hearing. Three publications in a newspaper published once a week or more often, with at least five days intervening between the first and last publication dates, not counting the publication dates, are sufficient.

(b) Notice shall be published in a newspaper of general circulation in the city where the decedent resided at the time of death, or where the decedent's property is located if the court has jurisdiction under Section 7052. If there is no such newspaper, or if the decedent did not reside in a city, or if the property is not located in a city, then notice shall be published in a newspaper of general circulation in the county which is circulated within the area of the county in which the decedent resided or the property is located. If there is no such newspaper, notice shall be published in a newspaper of general circulation published in this state nearest to the county seat of the county in which the decedent resided or the property is located, and which is circulated within the area of the county in which the decedent resided or the property is located.

(c) For purposes of this section, "city" means a charter city as defined in Section 34101 of the Government Code or a general law city as defined in Section 34102 of the Government Code.

Sometimes the only newspaper that is recognized by the court located in the jurisdiction where the person died is one with a relatively small circulation. But because the newspaper may have a captive audience and also because it may be the only newspaper adjudicated (i.e., qualified) to publish the notice of death, it may feel free to charge a high fee – perhaps as high as $1200 or slightly more. In comparison, for probates that are appropriate to file in Los Angeles, the local newspaper charges $200 to publish notice.

Speak to an attorney very familiar with handling California probate matters. Call Mitchell A. Port at 310.559.5259 for probate help.

Although this blog is focused primarily on matters of interest involving California probate, there are related topics worthy of discussion.

For example, while probate is the California court's supervision over the transfer of property from the deceased person's estate to the rightful heirs or beneficiaries, when that person is still alive he or she may not have the ability to make decisions about the property belonging to him or her. When we are alive but incapacitated (by a stroke, heart attack, auto accident, debilitating disease or some other reason), someone ought to be given the power to make decisions regarding our property when we are not able to make those decisions ourselves.

In those instances, a durable power of attorney for property management and financial affairs is useful. That type of California document "endures" our incapacity and continues to remain in effect. The person named in the durable power of attorney - the attorney in fact - steps into our shoes and is empowered to make decisions regarding our property.

There are basically two types of California durable powers of attorney. One becomes effective immediately upon being signed. In that case, the attorney in fact may exercise his or her powers even when we may still be competent. So, when using this type of power of attorney, be sure to give the power to someone who will not misuse it.

The second type of durable power of attorney becomes effective upon our becoming incapacitated. The power "springs" up when and as needed. The primary draw-back to a "springing durable power of attorney" is the common requirement that the attorney in fact must also present notes from two physicians declaring our incompetency. Getting those type of notes may be a challenge which could render the durable power of attorney ineffective.

Here's a sample free form.

For more information, call a California attorney. Call Mitchell A. Port at (310) 559-5259.

The Judicial Branch of California provides free access to forms to handle your own probate.

To start a new probate case or to challenge a new probate case, you'll need to file a Petition for Probate by using the form at this link.

In many cases, when you file a Petition such as the Petition for Probate, you have to provide notice of the hearing date, location of the hearing and time for the hearing. You give notice by using the form at this link.

Once your Petition for Probate is approved by the Court, the two most important documents you have to get from the Court which empower you to carry out your duties to the estate are the Order for Probate and Letters.

Be sure and file the "Duties and Liabilities of Personal Representative" which you sign to acknowledge that you understand your obligations as the personal rep for the estate.

You cannot waive your obligation to inform the Court about the value of the property and exactly what property is part of the probate estate. Use the "Inventory and Appraisal" form. For some of the property listed on the Inventory and Appraisal form, you will need to have an independent third party report the value to the Court. That person, called a probate referee, is appointed by the Court from a list of qualified persons. To request the Court to appoint the probate referee, use this form.

If there is a sale of real property in the probate case, you can submit your offer to purchase it by using the "Bid in Open Court on Sale of Real Property".

On the decision of which court to file your Petition for Probate and to handle the entire probate estate, you have to use the "Probate Case Cover Sheet - Certificate of Grounds for Assignment to District".

Anyone can handle a probate case and you do not need an attorney to do it. However, as with many things, you still need to know what to do in order for the probate to go as well as it possibly can. When you need an attorney, call one with probate experience. Call Mitchell A. Port at (310) 559-5259.

Approximately 70% of Americans don’t have a will. A will is a fairly simple document to create so why do so many people avoid it? Some might say: I don’t have anything to leave to my heirs; I’ll let them sort it out when I’m dead; I’m dead so it’s not my problem; I’ve got plenty of time to write my will; I can’t afford it, etc. Read about how to write your own will here.

Families today tend to be blended, containing spouses, ex-spouses, children, step-children, and adopted children. Parents of blended families—or any family, really—should take the time to draft a will to ensure their wishes are followed after they die. You certainly are capable of writing your own will, but most attorneys and financial advisors recommend getting the help of an attorney to draft a will to ensure all required details are covered. Individuals should also consider preparing a durable power of attorney for health and financial reasons.

Naming a guardian for your minor children and naming an executor are two important components of your will. What happens if neither parent is able to take care of the children? Without a will, the court appoints a guardian for your children.

Be sure to update your will if there’s a change in your marital status, you give birth to a child, move to a new state or any significant change in your life situation. It’s particularly important to write a new will if you’re in a second marriage and you have children from a former relationship. In some cases, your current spouse may automatically inherit your assets and your children may unintentionally be left out.

Forbes online has an interesting article on this topic here. It is worth reading.

Call the right probate and estate planning attorney for help. Call Mitchell A. Port at (310) 559-5259.

Whether you own stamps, coins, art or other collectibles, remember to include them in your California Will or living trust so your executor or trustee knows what you intend to have happen to those items when you die.

A New York Times article offered advice about what to do with this kind of stuff.

Selling the property is one option. You can sell the items during your lifetime or direct in your Will or living trust that the items be sold after your death. Auctions, outright sales and ebay sales are some of the ways to address your property.

Passing it on to your friends or family through your Will or trust may make sense under certain circumstances. If you desire to keep your collection intact, then passing it on in its entirety will help accomplish that goal.

Giving property away by making lifetime gifts that take advantage of your ability under federal gift tax laws to give away up to $13,000 per recipient will go a long way toward making sure that those who want certain articles of yours will actually get them while at the same time minimizing your exposure to estate taxation on the property you decide to keep. Making charitable gifts is another way to give away property but consult a tax attorney about the application of federal gift tax laws to your gift. Finally, you can give property away using sophisticated estate planning devices which take advantage of the federal tax laws on questions of leverage, discounts, retention of a remainder or lead interest, generation skipping, dynastic planning and the like.

California's probate process covering property to which you own title may be needed to pass title to those to whom you left the asset. Call a probate lawyer to ask your questions about these and other probate issues that you may have.

California's probate law permits a partial or complete distribution to a beneficiary who requests it no sooner than two months after Letters (Testamentary or of Administration) are issued.

To accomplish this, a Probate Court hearing must take place. The Court is obligated to order a distribution if at the hearing it appears that the distribution may be made without loss to creditors or injury to the estate or any interested person.

For more details about preliminary distributions, click on this link.

Generally, creditors can expect to have their claims satisfied after a timely filing of the proper form with the California probate court according to the following order of priority:

Expenses of administration Obligations secured by a mortgage, deed of trust, or other lien Funeral expenses Expenses of last illness Family allowance Wage claims General debts

For more specific information, look at California Probate Code Sections 11420-11429.
To challenge a creditor's claim, click on this link.

Need help with your claim in probate? Call a California lawyer. Call Mitchell A. Port at (310) 559-5259.

Among a California notary public’s various roles, one is to serve as an officer that authenticates the signing of important legal documents. A notary is simply an impartial witness to the taking of acknowledgements and/or affidavits, the signing of documents and administering oaths.

To become an officer of the state, a notary public must complete and pass a curriculum as well as a state standardized test. The would-be notary must also go through an FBI and California Department of Justice background check. The California Secretary of State publishes online the Notary Public Handbook which contains California laws relating to notaries public and is designed to assist an applicant in preparing for the notary public examination.

As an impartial witness to the execution of legal documents, all California notary publics are prohibited by law from giving or providing any information that can be construed as practicing law. A notary cannot provide legal advice; a notary is not an attorney (though some attorneys – like me - are notaries).

A notary public's power and authority comes from the State of California and is appointed and commissioned by California's Secretary of State. A California notary public must act in an impartial, unbiased and disinterested manner since the position is a privilege that results from being given a public office.

Some typical documents a notary public will notarize include real property deeds, living trusts, healthcare directives, Powers of Attorney for property management, property titles, grants and estate plans. For certain notarizations such as documents transferring title to real estate, notaries will also fingerprint the parties involved in the transaction.

As an estate planning attorney, I notarize the documents I have prepared for my clients since I am also a notary. In most cases, I won't notarize a document for someone who is not my client or for a document I have not prepared.

For steps to obtain a notary public commission, here's a brief checklist:

Complete Approved Education

Register for the Exam

Take the Exam

Submit Fingerprints via Live Scan

Await Commission Packet

Purchase Notary Public Materials

File Notary Public Oath & Bond

For more information about this, see the Secretary of State's website at this link.

In December, 2010, I posted an article entitled "California Probate Of Small Estates". It discussed the thresholds required by California probate law for an estate to be probated. Those thresholds have been changed as of January 1, 2012.

For estates that own real estate, the threshold for filing an Affidavit Re: Real Property of Small Value is increased from $20,000 to $50,000.

Formal probate proceedings need to be initiated for California decedents when the total value of the real and personal property in the estate exceeds $150,000. The old threshold was $100,000.

For help from a California lawyer with experience in probate matters, call Mitchell A. Port at (310) 559-5259.

"Probate attorney" is the title given to lawyers employed by the Los Angeles Probate Court to assist the Court during the course of a California probate. When a hearing is about to be held by the Court, probate notes written by a probate attorney are often posted on the web in order to help clarify matters either before or at the hearing. (I am a probate attorney but not the type described in this posting.)

Sometimes contacting the probate attorney about those notes is necessary. There are e-mail parameters for responding to probate notes. While clearing of notes is usually done by supplement or other pleadings, the e-mail response allows the party to bring matters to the attention of the probate attorney, for clarification of probate notes or to ask procedural questions.
At the end of each probate note is the e-mail address for the probate attorney who prepared the notes.

There are several purposes for emailing the probate attorney:

1. To request a continuance;

2. To alert the Probate Attorney, who prepared the notes, that a document or documents were filed to clear the notes for matters in Dept 5 and Dept 11;

3. Request authority to file "clearing document" with the Attorney Order. Filing of such documents will be allowed in the discretion of the Probate Attorney. Examples include, but are not limited to: Waiver of Notice/Special Notice; FTB Income Tax Certificate; Waiver of account; Withdrawal of Request for Special Notice; Consents; and

4. To ask a question as to specific defects or issues.

E-Mail message shall conform to the following:

1. No attachments;

2. E-Mail message not to exceed 2 pages;

3. Five lines as to each defect or issue;

4. Limited to one E-Mail message per calendar matter per hearing date

Here's what an E-Mail Message looks like:

FROM: Mitchell A. Port
TO: @lasuperiorcourt.org

SUBJECT: Hearing Date 4/26/12

MESSAGE: DATE: April 23, 2012
FROM:
TELEPHONE #: (310) 559-5259
HEARING DATE: April 26, 2012
DEPARTMENT:
CASE NUMBER:
CASE NAME: Estate of

Defect A: Notice of Hearing was filed 3/29/12
Defect B: Can I file the FTB Income Tax Cert with A/0?
Defect C: Supp has been filed on 3/29/12 setting forth correct statutory fee calculation

If you live in California, you should have a will. This is true whether you have young children, are single, married, or own even a nominal amount of personal assets or property.

You should have a will in order to control the disposition of your property.

Even if you have a living trust you should also have a will because without a will, any property not named in the living trust will pass according to California probate law rather that according to your wishes. Moreover, when you die without a will, the state will distribute your property according to a preset formula, excluding charities and relatives, unmarried partners and friends.

To create your will you only need to be "of age" and of "sound mind".

If a will is valid in the state where it was created, California probate courts will almost always consider it valid. The only requirement in California for a will to be valid is that it must be signed by the person making the will and at least two disinterested witnesses. To make it easy to make a will, California has created a form called a statutory will in which you fill in the blanks. California also recognizes holographic wills which is a will entirely in your own writing and signed by you without a witness. California does not require that wills be notarized.

For a free consultation, call a California probate law attorney. Call Mitchell A. Port at (310) 559-5259.

Q: Where is the list for probate properties that are for sale in Los Angeles?

A: There is no list. However, posting for upcoming petitions in the Central District can be found on the 1st Floor of the Stanley Mosk Courthouse. Each Courthouse has a posting area of their upcoming petitions as well.

Q: Does the Court provide a list of probated property?

A: The Court does not provide such a list.