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.

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.

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.

The State Bar of California has online pamphlets on a variety of topics such as estate planning, living trusts, when to get a will, finding the right attorney, kids and the law, seniors and the law, just to name a few.

On the topic of estate planning, the State Bar website asks the following useful questions if you’ve been thinking about whether or not to contact a qualified California attorney to discuss estate planning:

  1. What is estate planning?

In California, will contests and trust disputes are quite common.  When someone who believes they are entitled to share in an estate or a family member disagrees with how estate property is being distributed, the likely result is probate litigation.  Litigation begins with a petition and that means someone who has an interest in the estate brings their disagreement to the court to resolve. Litigation is sometimes difficult to avoid despite using even the best estate planning techniques.

There are essentially four legal grounds for challenging the validity of a will.  Each of these bases can be difficult to prove because medical records need to be obtained, witnesses’ declarations/testimony needs to be provided and experts may need to be hired for their input.  Contesting a will can also be a very expensive court process, yet that fact does not often dissuade everyone.  The legal bases to challenge a will include the following: (1) there is a question about testamentary capacity, (2) there is a suspicion of undue influence in preparing or executing the will, (3) it was not signed properly, and (4) the testator was fraudulently induced into creating the will or including certain provisions.

A lack of testamentary capacity can invalidate a will.  Under California law, an incapacitated person is defined as follows:

California probate, especially in Los Angeles, costs money.  Fees are payable for all kinds of things, including and certainly not limited to, filing a probate petition, filing objections, filing trust contests, and filing demurrers.  For a complete list of fees, see the 2017 fee schedule here.

In a nutshell, here is a list of items for which a fee is due (just click on the image):

 

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E-filing is now required by the Los Angeles Superior Court for almost all documents.  There are many e-filing service providers to choose from when filing your documents with the Court.  The Court’s own website has a lot of services available to help those who want to handle their own matter.  Below is a list of the types of services the Court’s website offers:

You can check on your jury duty, pay your ticket, check court records and more.  I have provided easy access only to those services the Court provides in connection with probate.

  • You can get a summary of your civil, small claims, family law and probate case. All you need is your case number.

    Access Now

    The Probate Division has implemented mandatory electronic filing (efiling) for attorneys and provided the option of efiling to self-represented litigants. Probate matters are heard at the Stanley Mosk Courthouse and the Michael D. Antonovich Antelope Valley Courthouse.

    Access Now

    You can access up to 14 days of a courtroom’s calendar to find your court date for general jurisdiction civil, limited jurisdiction civil, family law and probate calendars. In compliance with Code of Civil Procedure section 1161.2, Unlawful Detainer case information is not available to the public for the first 60 days.

    Access Now

    You can find the courthouse location where you may file your civil, family law, probate or small claims case using a zip code or city/community.

    Access Now

    You can request an interpreter for your Probate case.

    Access Now

    You can search parties of record and participants for civil, small claims, family law and probate cases to find your case number.

    Access Now

    You can find Probate Notes related to your case. All you need is your case number.

     

     

    Below is a list of the Los Angeles Superior Court Divisions

    The Appellate Division of the Los Angeles Superior Court reviews the trial court decisions, and all evidence presented in the trial court. The types of cases reviewed are: Infraction, Misdemeanor, Limited Civil, Small Claims Post Judgment Enforcement Orders, and Writs relating to the above types of cases.

    Access Now

    The Civil Court provides a system for private parties to resolve disputes. In civil cases, the plaintiff files a case against the defendant. The jurisdiction of a court is the authority to handle a case and is determined by the amount of the dispute.

    Access Now

    The criminal courts hear cases where the State has filed charges against one or more persons alleged to have committed criminal offenses. Criminal offenses fall into one of three categories: Infractions, Misdemeanors, or Felonies.

    Access Now

    Family Law cases can involve a number of issues such as: Child Custody, Child Support, Divorce, Domestic Violence, Legal Separation, Nullity (Annulment), Parentage (Paternity) and Spousal or Domestic Partner Support. The Family Law Division also hears Elder Abuse, Civil Harassment and Gun Violence Restraining Order requests.

    Access Now

    The Juvenile Division of the Los Angeles Superior Court deals with cases that involve children under 18 years old. The two types of courts within the Juvenile Division are Dependency Court and Delinquency Court.

    Access Now

    The Mental Health Court of the Los Angeles Superior Court provides a wide variety of services to the mentally ill. Los Angeles County is the only county in California using a centralized court for cases involving mental disorders and mental health legal issues.

    Access Now

    Probate Court is a Court of General Jurisdiction that includes, but is not limited to the following proceedings: Decedents’ estates, Trust proceedings, Guardianship proceedings, Conservatorship proceedings, and Minor’s compromises.

    Access Now

    Small Claims Court handles Civil cases asking for $10,000.00 or less. It is a special court where disputes are resolved quickly and inexpensively. Rules are simplified and the hearing is informal. There are no lawyers, no rules of evidence, and no juries. You don’t need to be a United States citizen to file or defend a case in Small Claims Court.

    Access Now

    Traffic Court handles cases that usually begin when a citation or ticket is written by a law enforcement officer. Tickets can be issued for violations of traffic laws and other non-traffic offenses.

Vesting Title in Real Estate

For investment property, perhaps one of the better ways of owning real property is in a limited liability company (LLC) created either in California or in another state with great asset protection laws and regulations.  The LLC should in turn be owned by your living trust.

For non-investment property, using an LLC may also be appropriate depending on the circumstances.  For example, if you are divorced or single, keeping title in your own name may be too risky and using an LLC instead may be more risk-averse.

Digital asset is defined as “an electronic record in which an individual has a right or interest. The term ‘digital asset’ does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.” California Probate Code Section 871(h).  “Electronic” and “record” are also separately defined.

The State of California enacted a version of the Revised Uniform Fiduciary Access to Digital Assets Act which adds Part 20 (beginning with Section 870) to the Probate Code. It applies only where electronic information is being requested from a custodian by a decedent’s representative for the purpose of ascertaining the decedent’s assets and liabilities in managing an estate.  This does not cover conservatorships, trusts and powers of attorney where the conservatee, trustor, or principal is still alive.  It excludes coverage of an employer’s digital assets used by an employee in the ordinary course of the employer’s business. Thus for example a decedent’s estate may not request under the Act the e-mails of a company where the decedent had worked.

California Probate Code Section 870-884 can be generally summarized as addressing the following topics:

My client’s father died after being killed at a convenience store where he worked.  He didn’t leave a Will but my client was his only child so the Los Angeles Court appointed him as administrator of his father’s estate.  My client had heard his father tell him repeatedly that he owned over a million dollars of property (despite his relatively small salary).  Since the administrator was still a student at a local university and had practically no means of self-support, he needed to find that property and ask the Court to permit the distribution of it all to him.  The only problem in administering the estate was that access to the information leading to the discovery of the million dollars of property was locked in his father’s Google gmail account.  Google refused to allow my client access despite having a Court Order and Letters of Administration granting him full authority over his father’s property.  Instead, Google wanted the Court to sign this Order:

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

 

[PROPOSED] ORDER TO PRODUCE CONTENTS OF DECEDENT’S GMAIL ACCOUNT

Dept.:

Judge:

 

Having considered all of the evidence and relevant legal authorities, the Court finds as follows:

  1. Google Inc. (“Google”) provides a free email service, called Gmail.
  2. ____________ (“Decedent”) is deceased.
  3. ____________ (“Administrator or Administratrix”), is the lawful administrator or administratrix of Decedent’s estate under California law.
  4. Decedent is the sole account holder of the Gmail account ___________ (“Account”).
  5. In his/her lawful capacity established under Paragraph 3, Administrator or Administratrix has a legal right to obtain the content of communications stored in Decedent’s Account.
  6. Under the circumstances of this case, and in light of this Order, no law, legal duty, or obligation, including, but not limited to, any provision of California law or the federal Stored Communications Act, 18 U.S.C. §§ 2701, et seq., prohibits Google from disclosing to Administratrix the communications stored in Decedent’s Account.

IT IS HEREBY ORDERED:

  1. Within ten (10) business days of the entry of this Order, Administrator or Administratrix shall cause an email message to be sent to Google at postmortemrequests@google.com. That email message shall attach an electronic copy of this Order as entered by the Court and shall state as follows:

I, _________, obtained the attached court order directing Google Inc. to produce to me the content of any reasonably accessible Gmail communications stored in the Gmail account [Insert Decedent’s Gmail Address] and dated between [date] and [date].

  1. The Consent Email shall further state that the Administrator or Administratrix consents to Google delivering the content to [Recipient’s name and Address]
  2. Within ten (10) business days of receiving the email message described in Paragraph 7, Google shall disclose to Administrator or Administratrix the communications specified in Paragraph 7. Google shall disclose those communications by sending them to Administrator or Administratrix, in an electronic format of Google’s choosing, at the email address that Administrator or Administratrix uses to send the email message described in Paragraph 7.
  3. Google shall have no obligations to disclose any communications under this Order until the Order is entered by this Court and until Google receives the email message described in Paragraph 7.
  4. This Order resolves any request, legal process, motions, or court orders currently directed to or against Google in this matter. Any such requests, legal process, motions, or court orders are hereby DENIED, QUASHED, OR VACATED as moot.

IT IS SO ORDERED.