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Questions Answered by John B. Palley

2 Answers | Asked in Probate for California on

Q: Property in probate can everyone sign their right to one person if they want nothing to do with the property?

My grandfather passed away now the property is in probate the court have assigned a administrator which is my aunt. If all the heirs decide they do not want any thing to do with the property and want to sign their rights to just one heirs is that possible? My mom is one of this heirs they want to... Read more »

John B. Palley answered on Jun 9, 2019

This can be done by assignment in most cases and generally is not a problem at all. There can, theoretically, be gift tax consequences so one should always talk to a lawyer to confirm that is not a problem. Also, in some cases a disclaimer will work which likely does not have tax consequences but... Read more »

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1 Answer | Asked in Probate for California on

Q: Is the former trustee's attorney obligated to modify an order that contains mistakes?

The newly appointed trustee of my late mom's trust is unable to open a trust bank account because the order prepared by the attorney for the former trustee names the newly appointed trustee incorrectly (correct last name but incorrect first name) and the check is made out to the newly appointed... Read more »

John B. Palley answered on Jun 7, 2019

This is unfortunate but it's probably cheaper to file for an amended order than it is to try to compel the other attorney to do it. I would just have the current trustee's attorney get it done. Beyond that, however, I would try multiple banks first. Usually there is a bank that will be friendly. I... Read more »

2 Answers | Asked in Probate for California on

Q: Im tired of trying to do this probate! I give up Can somebody help please Its out of LA Cali dept 11

Im Admin i want to finish this

John B. Palley answered on May 30, 2019

I’d like to discuss your case to see if I can help. 888-920-5983

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1 Answer | Asked in Probate for California on

Q: my brother passed away with three or 4 vehicles and a bank account. how can I access this to pay for funeral expenses?

he was basically homeless living in his van or one of his cars. he owned two camero's Iroc-z (torn up inside but one runs one is registered in his name the other he never registered and I have no clue who he bought it from), a van (that some broke into and trashed, again not registered and no pink... Read more »

John B. Palley answered on May 28, 2019

I am sorry for your loss. It sounds like a small estate case (under $150,000) and thus utilizing small estate affidavits is best. Unfortunately you don't get access to the bank or cars until 40 days after death. This all assumes you are not named as beneficiary/POD and/or co/joint owner on the bank... Read more »

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for California on

Q: Mom's home appraised 7 mo. Prior to her passing. Since appraisal 5 homes have sold in immediate area sold for far more.

Is executor of will responsible for having appraised again due to fair market value has gone up?

John B. Palley answered on May 27, 2019

If In probate a date of death appraisal by the probate referee is required. If the case is not in probate a date of death appraisal is highly recommended but in certain cases can be avoided. Beyond that there are a lot of issues that an attorney will advise the executor or trustee on. I would... Read more »

2 Answers | Asked in Probate for California on

Q: We filed a petition already. Judge continued it due to a few problems. Will named 2 executors, both died years ago.

Judge wants a declination to serve. How is this possible?

John B. Palley answered on May 14, 2019

Is there a 3rd named in the will? If not, I would think signing a declaration that the other two have died should be sufficient. Shouldn't need to prove with death certificates I wouldn't think. Your petition should then be a petition for probate of a will with will annexed, seeking appointment of... Read more »

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2 Answers | Asked in Banking, Estate Planning and Probate for California on

Q: My mother passed she has multiple bank accounts but only one is joint account with my father.

Obviously under California law my father is entitled to the funds in the joint bank account because his name is also on it. But if there is no will or the other accounts are not listed in the trust is he also entitled to 100% of the funds in the personal savings and checking accounts?

John B. Palley answered on May 14, 2019

Mr gaffney gave a good overview of cp and sp. I agree with him. The next question is if the total of the accounts just in his name is more or less than $150,000. For estates worth $150k and less there are small estate affidavit procedures that can be done. Over $150k then a full probate is required.

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1 Answer | Asked in Estate Planning and Probate for California on

Q: Im going thru probate now (no will) and just remembered the property owned in Mexico. What to do about that?

John B. Palley answered on May 13, 2019

I would contact an attorney in Mexico to determine what they will need. Being that there is no will they may not need anything from the California probate. I am not sure. Good luck. -John

2 Answers | Asked in Real Estate Law and Probate for California on

Q: My husband of six years passed. Are my step-children entitled to any part of the home he owns?

My husband's intent was to quick deed the home to me, but because of his illness and sudden death, he did not do it. he verbally expressed his wishes to me. There is no will or living trust and my name is not on the deed.

John B. Palley answered on May 8, 2019

I would say it depends on when and how it was acquired. The oral agreement probably means nothing. Your name not being on title is a presumption that it is your husbands separate property but not the answer. Was it acquired before or during marriage? Was the down payment from his money from work... Read more »

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2 Answers | Asked in Probate for California on

Q: I lived with my mother in the home she owned when she died. Will I be forced to sell the home to cover estate debts ?

We live in California. The home is the only asset. I am the only heir and it has been my primary residence for years

John B. Palley answered on May 6, 2019

I am sorry for your loss. You will have to go through probate court to clear title and deal with creditors eventually but there might be no rush. However many creditors do not file claims or do not file lawsuits if a claim is rejected. Thus a person in probate can often avoid the creditors. I would... Read more »

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1 Answer | Asked in Probate for California on

Q: Seeking help to obtain a death certificate for my daughter's father who is presumed deceased by suicide since Feb. 2014.

What type of legal process is required in Caslifornia to obtain a death certificate regarding a missing person of five years time?

John B. Palley answered on May 1, 2019

Five years after death there is a procedure that can be filed in California to establish death. It’s called presumed death. I think probate code 12400 or so. I have done the procedure once. It’s very rare. I do probate work statewide.

1 Answer | Asked in Estate Planning and Probate for California on

Q: RE: CA Probate Code 12003 - What is an acceptable interest rate?

CA Probate Code 12003:

If a general pecuniary devise, including a general pecuniary devise in trust, is not distributed within one year after the testator's death, the devise bears interest thereafter.

John B. Palley answered on Apr 25, 2019

I believe 7% is the statutory amount.

1 Answer | Asked in Estate Planning, Real Estate Law, Banking and Probate for California on

Q: Wat is IAEA powers & gettin bonded mean? I'm Admn.of estate and had previously asked how can i use money frm block acct?

John B. Palley answered on Apr 13, 2019

Generally speaking only people who have not planned end up with a blocked account and without full IAEA authority. I typically see this done by pro pers and by lawyers who don't know what they are doing. There are other situations but that's a generalization by me.

IAEA means the...
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3 Answers | Asked in Estate Planning and Probate for California on

Q: Do i need to get a court date just to ask probate court to release partial funds from block acct ?

I am Administrator of this estate and I need some money to pay a contractor. I openned court order blocked account where the funds are deposited. While i wait for other issue to be resolved Is it possible to use that money? How do i ask judge?

John B. Palley answered on Apr 12, 2019

Honestly I would petition the court and ask to switch to IAEA powers, get bonded, and get rid of the blocked account. It will be easier to handle estate business including, eventually, selling the house. There is a judicial council form to make the switch to full IAEA powers. If you don't have one... Read more »

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1 Answer | Asked in Probate for California on

Q: I am the executor of my brother's estate and the only beneficiary. Is the waiver of accounting included with the

petition for distribution?

John B. Palley answered on Apr 11, 2019

Typically the waiver of accounting and waiver of executors fee are separate documents.

1 Answer | Asked in Probate for California on

Q: Can i go through the transfer of property with probate court because the property may be homestead?

Is there a simplier way to proceed with out court.

John B. Palley answered on Apr 2, 2019

A homestead has no bearing on the probate procedure needed to clear title. The main issue is if it’s worth more or less than $150k as under that is a simpler probate procedure but still in probate court. Definitely hire an attorney. Good luck.

1 Answer | Asked in Probate for California on

Q: How do i go about transferring real property to my name if the person is deceased with no will ?

My grandmother passed away four years ago with no will, executor, I have been residing in the home she bought and where I grew up due to financial hardship and unexpected family problems the property is currently is in pre-foreclosure and I am working hard with the loan provider the bank has been... Read more »

John B. Palley answered on Apr 2, 2019

A lot of times there are attorneys who will front the costs of probate. It really depends on the facts of the case. Also there are ways to get a fee waiver in probate court. Doing probate without an attorney can be risky because if you mess up you will be delayed. You could lose the house to... Read more »

1 Answer | Asked in Probate for California on

Q: A will states no bond and the 2 executors passed away, is it still no bond? Do we need to file waivers with the DE111

John B. Palley answered on Mar 17, 2019

The will's language of no bond only applies to the named executors not others. You would need to get bond waivers and, even then, the Judge might require bond if you are seeking full IAEA authority. However, if the proposed PR is in state and you get a signed bond waiver (on correct form) then the... Read more »

2 Answers | Asked in Probate for California on

Q: My father passed and his ex-wife just wants to get her name off the title & I'm the only sibling how should I do this?

My father had no will and the ex-wife want's nothing to do with the property how do I go about getting her name off the title? Do I need to go through probate court? Or what kind of attorney would handle type of situation?

John B. Palley answered on Mar 13, 2019

It's tough to know without seeing the deed but most likely a full probate is required. In some cases there are lower cost probate alternatives also. There are a couple of different ways to handle the ex-wife's interests but it depends on whose name(s) is/are on the deed, what their divorce... Read more »

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1 Answer | Asked in Probate for California on

Q: I already have a probate attorney and things aren't going so great so I told him I was disappointed in his services.

If he quits on me and I didn't fire him is he still able to get paid even if he quits

John B. Palley answered on Feb 20, 2019

Typically in a probate your new attorney and your old attorney will split the statutory fee in some percentage that is equitable to both of them. It should not cost you more money though. Interview a couple of attorneys and find someone that you feel comfortable with. Good luck. -John

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