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How Long is Probate?

About a year, at least – maybe longer.

Assuming a Petition for Probate is filed on January 1 in Los Angeles Superior Court, the Court will calendar the Petition for a hearing about 6 to 10 weeks later.  Before the scheduled hearing date, the Court posts Notes online which ask questions about or point out defects in the Petition that need to be satisfactorily responded to before the hearing date.  If the Notes are not adequately responded to, then the Court will continue the hearing date for another 6 weeks or so to give you time to respond; by the new hearing date, the Notes ought to be cleared up so as to avoid any further continuances.  So the hearing date from the original January 1 filing date is about mid- to late-April.

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The California State Board of Equalization (BOE) recently wrote a letter summarizing how a real estate owner can rescind a recorded deed that gave rise to a reassessable change in ownership.  When real estate deeds are recorded, unless at least one of several exemptions from reassessment applies, the property is reassessed for tax purposes and the current owner’s taxes will be increased.  But what if a deed was recorded by mistake and you want to undo the mistake so as to avoid the assessor’s tax reassessment?  What can be done?  If you qualify, you simply rescind the deed.

When you record a grant, quitclaim deed or other written instrument that conveys or transfers title to real property, it is done on a voluntary basis.  A voluntary transfer of title to property is an executed contract which is subject to all the rules and laws dealing with contracts in general.  As a result, since deeds are considered executed contracts that are subject to the rules applicable to contracts, they are subject to the California Civil Code.  The Civil Code spells out the basis for which a contract can be rescinded.

California Civil Code Section 1688 provides that a contract is extinguished by its rescission. A contract may be rescinded either mutually if all the parties consent and if all parties are restored to their original position before the execution of the contract, or unilaterally under certain circumstances such as fraud, mistake or duress. Upon rescission, “the contract becomes a nullity; it and each of its terms and provisions cease to be subsisting or enforceable against the other party.”  Section 1691 explicitly requires the restoration of the parties to the status quo for unilateral rescission. Although the Civil Code contains no similar explicit requirement for mutual rescission, case law is supportive of a requirement to return the parties to the status quo for mutual rescission.  Also, since a mutual rescission has the effect of nullifying the contract, it follows that the parties to an executed contract should return each other to the position they were in prior to the execution of that contract.

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One way to disinherit someone is to state in your California Will or living trust that if a beneficiary files a “pleading” in court, that person is penalized in some fashion, often by forfeiting their inheritance or distribution out of a trust.  This is often referred to as a no contest clause or an in terrorem clause.  The term “pleading” means a claim, petition, complaint, objection, cross-complaint, response or answer.  No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the settlor’s expressed purposes.  There are, however, other public policies that compete with that one and therefore no contest clauses are also disfavored by the policy against forfeitures and may not extend beyond what was clearly the trustor’s intent.  The California Probate Code contains an entire Part dedicated to no contest clauses in Sections 21310 through 21315.

California Probate Code Section 21311 defines what no contest clauses can be enforced and provides that a no contest clause may be enforced against a direct contest that is brought without probable cause. A “direct contest” is defined to mean a contest that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more of the following grounds:

(1) Forgery.

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The California Courts has a very informative website.  The section discussing probate, estates and wills is the most interesting and very comprehensive.

For example, the website begins the discussion on wills, estates and probate by stating in part:

“Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died.

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The Detroit Free Press published the article below about Aretha Franklin’s estate which illustrates for those of you living in California how important it is to get your estate planning affairs in order by having a Will and perhaps a living trust prepared.  If you own real property in California or have money in the bank or stock worth $150,000 or more, then seriously consider preparing a living trust in order to avoid probate.

To decide whether you can avoid probate, figure out if the value of the property (the estate) is worth $150,000 or less. To do this:

Include:

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Almost all of the California probate courts now require electronic filing (efiling) of documents.  For about the last year, the Los Angeles Superior Court requires efiling in probate.  There are over five dozen providers assisting with efiling.  Those providers charge a filing fee over-and-above the filing fee charged by the court.

Exceptions to mandatory efiling in probate cases are:

  1. Original testamentary instruments (wills & codicils), letters, original trust documents, and bond or undertaking documents
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Your spouse may still inherit a part of your estate in California even if you are separated and not living together at the time you die.  The California Probate Code, beginning with Section 6400, addresses how your property passes when you die without a will.  Not having a will is called dying “intestate”.  If you are married when you die, certain rules apply to how much your surviving spouse inherits but if you are “legally separated” yet still married, those rules don’t apply and your spouse gets nothing.  There is a difference between simply being “separated” and being “legally separated”.

Being “separated” and dying without a will results in your spouse getting half of your community property which means that the surviving spouse ends up with about three-fourths of your community estate (the half already owned by the surviving spouse plus half of the dead spouse’s community property).  It also means that the deceased spouse’s separate property all goes to the surviving spouse who may have previously separated and moved away from the decedent if the deceased spouse does not leave kids, grandkids, parents, siblings, nieces or nephews.  If any of those types of “heirs” are alive when you die intestate, then your surviving spouse won’t inherit all of your property since it will be split with the other heirs according to the rules of intestacy.  Nonetheless, if you don’t want any of your property going to the person with whom you are still married when you die even if you’ve “told” others what your wishes are, put your wishes in writing.

Your marriage is not necessarily over simply because you may be living apart.  Some spouses spend huge amounts of time apart while they are attempting to reconcile.  Some spouses continue to maintain an intimate spousal relationship while living apart.  When there are kids, spouses may want to postpone a divorce until some later time related to the kids’ life so as to reduce the impact on them.  The time when an inference of being “legally separated” may be made is when one spouse unambiguously declares there is a complete breakup of the marriage; otherwise, no legal inference of being legally separate is made simply because spouses live apart from one another.

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When the person who made a trust dies, the trust needs to be administered by the trustee named in the document in order to manage trust property according to the trust document’s terms and for the benefit of the beneficiaries after the settlor’s death. Effective trust administration requires many steps to be done right. I recommend working with an attorney to help facilitate the process for the trustees who have a tremendous job ahead of them.

Mandatory notice to all the settlors’ heirs and beneficiaries is where trust administration starts. In California, the beneficiary has 120 days to file a trust contest after receiving notice. The beneficiary may forfeit his or her ability to file a contest if the time period runs out.  One of the benefits of providing that 120-day notice is to get the clock running so as to prevent claims from being made once they are too late to make.

The trustee will need to inventory all trust assets, such as real estate, bank and investment accounts, and transfer the title of those assets into the trustee’s name as the successor trustee. To do that, the trustee needs to first get the trust’s IRS federal tax identification number so that any income earned from the accounts in the name of the trust is reported correctly.

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My client’s brother died in Los Angeles, California without a will (intestate), without a surviving spouse and without children.  His sister, my client, was his sole surviving heir.  When he visited California to begin the probate and clean out her brother’s house, she found a large collection of guns, rifles, bullets and magazines.  The collection contained Remingtons, Winchester, Colts and Rugers.

California law as it now stands makes the transfer between members of the same immediate family by gift, bequest, intestate succession, or other means exempt from the requirement firearm transaction be conducted through a firearms dealer.  If the person acquired ownership of the firearm from an immediate family member by bequest or intestate succession, existing law makes the importation of a firearm into the state exempt from the requirement that the firearm first be delivered to a firearms dealer in this state.

A transfer between “immediate family members” for purposes of qualifying for an exemption from using a firearms dealer defines those members as a parent, child, sibling, grandparent and grandchild whether consanguinity, adoption or step-relation.  So firearms transfers between siblings, as in my probate case, can be accomplished without the use of a dealer.

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You have 3 choices to resolve a probate dispute: litigation, arbitration or mediation.  How do they differ from each other?

Mediation is generally done with a single mediator who helps facilitate discussion and eventual resolution of the dispute.  Mediation is often used as a non-binding process in contrast to arbitration which often produces a binding outcome.  It is up to the parties to agree or not about whether the outcome is binding on them. Besides being confidential and non-binding, mediation is relatively quick and inexpensive compared to litigating a dispute.

Arbitration is generally conducted by several arbitrators acting together. Each side selects an arbitrator who in turn picks another arbitrator so that in the end there is an odd number of arbitrators.  They take on a role like that of a judge, make decisions about evidence and give written opinions. Decisions are made by majority vote.  The parties decide ahead of time whether to make arbitration binding or non-binding. Binding arbitration replaces the trial process with the arbitration process.

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