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Questions Answered by John B. Palley
2 Answers | Asked in Estate Planning and Probate for California on
Q: What wording should beneficiaries use if they want to reassign part of their inheritance?

I'm the executor of my father's estate. He meant to divide his estate into six equal parts, for his five living children and the widow of his one pre-deceased child. He wrote the will without the help of a lawyer, and inadvertently left out his daughter-in-law by referring to her as his... Read more »

John B. Palley
John B. Palley
answered on Sep 16, 2020

I think you have two ways to accomplish this:

1) Have the other 5 people each sign an "assignment" of 1/6th of their inheritance to the DIL. That would cause everybody to get 1/6th each I believe (assuming everybody signs off).

2) Have all 6 people sign a...
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2 Answers | Asked in Probate for California on
Q: Can a mortgage lender sell a home before probate is finished ?

My father recently died with no will and no transfer on death deed on his home. Could the mortgage lender sell his mortgaged home before probate is finished ? If they can or do, will the estate receive the sale amount minus outstanding balance ?

John B. Palley
John B. Palley
answered on Sep 16, 2020

Probate does NOT automatically stop a foreclosure so they could foreclose any time.

Generally with a house in probate, if you notify the mortgage company, they will agree to hold off on foreclosing for a few months. If it's a reverse mortgage you need to ask repeatedly. Not sure if...
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3 Answers | Asked in Probate for California on
Q: In CA, husband’s will listed alternate heirs if the spouse does not survive him. She did. Must I list these alternates

in my petition to probate even though they do not inherit anything because spouse is still surviving?

John B. Palley
John B. Palley
answered on Aug 27, 2020

As the other attorney stated you do need to put on notice of your initial petition. In my opinion when in doubt send it out! That's my rule of thumb. Over-noticing protects the executor more than under-noticing in my opinion. Good luck.

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1 Answer | Asked in Probate for California on
Q: Ex husband passed with naming me as alt. Executor daughter as beneficiary in will do I have rights to our property

His sister is executor and she is resigning

John B. Palley
John B. Palley
answered on Aug 26, 2020

If the will was written during marriage then I believe you would be omitted from will. If will was written after divorce then it would be valid as to you. It's unclear if you are asking about being executor or beneficiary!? Also, is daughter a minor or an adult? Lastly, will anybody object... Read more »

1 Answer | Asked in Probate for California on
Q: Is it best to go to the original lawyer that wrote my mother’s will for probate?
John B. Palley
John B. Palley
answered on Aug 20, 2020

You should go to the best probate attorney you can in my opinion. The writer of the will may or may not be a great probate court attorney. Look for someone with extensive probate court experience and a focused probate practice not a general practitioner.

1 Answer | Asked in Probate for California on
Q: Father passed away with no will, POA or beneficiaries. Assets are less than 150k. Only survivors were two daughters.

My father passed away in July 2020

He passed away with no will, no beneficiaries and no POA. His assets are less than 150,000. I’ve researched that this would be a small estate but want to make sure we don’t have to go to probate. My sister and I are the only surviving children and he... Read more »

John B. Palley
John B. Palley
answered on Aug 19, 2020

No probate. Just do transfer without probate at DMV for car and similar forms at department of housing for manufactured home. Do those 40 days after death. No probate court. Good luck.

2 Answers | Asked in Banking and Probate for California on
Q: I am sole heir and administrator. I am in chexsystems and cannot open bank account. What will happen when house sells?

I am the petitioner in pro per. I do not have an attorney representing me. Could I amend my order and add a co-administrator?

John B. Palley
John B. Palley
answered on Aug 5, 2020

You could have the title company pay the money to your lawyer's attorney-client trust account. They could then make the distributions at the end of probate.

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1 Answer | Asked in Probate for California on
Q: Do I need to file as personal representative of the Estate before filing petition of small estate166,222 or less?

Would like to file for determination of succession of real and personal property under 166,222 in California. Home has mortgage of 150000 and no other assets. Small amount in checking but that's all.

John B. Palley
John B. Palley
answered on Aug 3, 2020

You do not need to file to be PR before filing a small estate petition. However, you do need to get the house valued by a California Probate Referee for that county. Also, the mortgage does not play into the valuation. The $166,250 value is just based on the gross value of the property. So you can... Read more »

1 Answer | Asked in Probate for California on
Q: I need a probate lawyer ASAP. I live in Modesto,ca I dont have much money, but am willing to pay what I can.
John B. Palley
John B. Palley
answered on Aug 1, 2020

Can you summarize the situation? A lot of times there is no money needed to start probate. Really depends on the facts. Feel free to post here or email me directly your summary.

4 Answers | Asked in Estate Planning, Insurance Bad Faith and Probate for California on
Q: Is a son or daughter of a beneficiary of a life insurance policy entitled to the proceeds if the the benefiary dies?

And son or daughter is not listed as a beneficiary on the policy?

John B. Palley
John B. Palley
answered on Jul 26, 2020

No. If the beneficiary dies BEFORE the person whose life the policy was on then the beneficiary's estate/heirs do not take. However, if the beneficiary dies AFTER the person but before they claim the life insurance proceeds then yes their estate/heirs would take.

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1 Answer | Asked in Probate for California on
Q: Started probate for parents property before my brother passed away.

I'm Living in the family home my parents had no will it is paid off. Before my brother passed we started a probate never completed I am the only child living The house is still in my parents name because it's been difficult having no will. Does the house go to me and my parents... Read more »

John B. Palley
John B. Palley
answered on Jun 27, 2020

Yes he could make you move out. Should probably try to work out a deal to buy him out. If you have a probate attorney helping with mom/dad's probate they should be able to help with brother's probate and a buy-out. If not, I encourage you to find a qualified and experienced probate... Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: Hello my brother just past away. It was just me and him as children of our parents

Hello my brother just passed away we were the only 2 children. My parents passed away with no will before my brother passed away we had an attorney start a probate to divide my parents been property between us 2 but my brother passed before it was completed still in process. Now do I divide it with... Read more »

John B. Palley
John B. Palley
answered on Jun 27, 2020

Brother's son gets brother's share. I am sorry for all your loss.

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2 Answers | Asked in Probate for California on
Q: How long does a family member have time to file for probate in the state of Ca
John B. Palley
John B. Palley
answered on Jun 18, 2020

You are supposed to file a will within 30 days of death but you are allowed to file later. If there might be a competing petition by someone else I like to file first. If there is no fighting then delaying is usually ok. I have filed cases 20 years after death.

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2 Answers | Asked in Estate Planning, Collections and Probate for California on
Q: Is the surviving spouse liable for the deceased spouse's credit card debt if only in the deceased's name?

If credit card debt was taken out by the deceased spouse in their name only and without the surviving spouse's knowledge, what rights does the surviving spouse have? Are they still liable for the debt? There is no will or estate.

John B. Palley
John B. Palley
answered on Apr 29, 2020

That's tough to answer as there are many variables and ways it could go. A general rule in probate is that a person (spouse or otherwise) is liable for debts (even if they didn't know about it) to the extent they received assets from the decedent. So if the spouse received money/assets... Read more »

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3 Answers | Asked in Probate for California on
Q: my mom notarized a letter, to sell her home (with mortgage) and split proceeds equally with siblings. Is Probate needed
John B. Palley
John B. Palley
answered on Apr 17, 2020

It sounds like the transaction was not completed. Did the buyers sign anything where they agreed to pay the mortgage? So that would be one of my several concerns. Also Without going through a title company I doubt the buyers would have good title so that might not be able to sell in future. I thus... Read more »

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2 Answers | Asked in Probate for California on
Q: California probate

Sister died and now my 2 brothers and I are involved in her probate. One brother wants to continue to live in her house and sell it down the road instead of selling it now and splitting the proceeds. I want to sell it now. Will the probate judge decide which? Can probate close and settle if we... Read more »

John B. Palley
John B. Palley
answered on Apr 16, 2020

Normally cash is needed to close (end) probate. That is cash for attorney fees, executor fees, court costs. So probate can't close without selling the house unless someone puts in cash. I would come up with a distribution agreement and have everybody sign off. Good luck.

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4 Answers | Asked in Probate for California on
Q: Can I just do a notorized letter instead of a will in leaving my house to my child and the deed is in my name?
John B. Palley
John B. Palley
answered on Mar 30, 2020

I agree with that others your proposed document would most likely not work. A holographic will or transfer on death feed is better. However, it should be pointed out there can be pitfalls with those. Talking to an experienced estate planning attorney is best. Good luck.

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2 Answers | Asked in Probate for California on
Q: My grandmother passed away over a year ago and my mother didn't put the estate through probate and she recently passed

My grandma's will says if her children are deceased the home goes to her grandchildren but my mom's husband is tying to take the house. My mom never put the house in her name... will me and my siblings inherit the home or does he have rights?

John B. Palley
John B. Palley
answered on Mar 28, 2020

Assuming there is no trust then a probate of some variety is required (depends if value more or less than $166,250 in value) for grandmas estate. That would put the house into moms name. Then moms probate would be required and it depends on if she had a will. If mom had no will I would say the... Read more »

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4 Answers | Asked in Probate for California on
Q: My mother-in-law recently passed away aren’t gifts she received during life her personal property?

Now the kids are asking for what they gave her back my husband is successor trustee I told him the items belong to her and that if nothing is identified to go back to any specific person, that they will have to follow what the trust says in order to disburse it

John B. Palley
John B. Palley
answered on Feb 26, 2020

Anything given to her belonged to her and not the givers of the gifts. Their rights ended when they gave the item to her. It’s a common misconception we see. Hopefully the will or trust provide instructions for distribution. Your husband should hire an attorney to advise him. Good luck. -John Palley

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2 Answers | Asked in Probate for California on
Q: THE ONLINE RECORD SAYS "PETITION GRANTED" . DOES THAT MEAN THAT JUDGE HAS SIGNED THE PETITION?
John B. Palley
John B. Palley
answered on Feb 25, 2020

That means the Judge orally said it was approved. The Court order needs to be submitted and signed still. Usually whoever filed the petition will then file the order to be signed by the Judge. In almost all instances the written order is important so needs to get done. Good luck.

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