Lawyers, Answer Questions  & Get Points Log In
Questions Answered by Bruce Adrian Last
3 Answers | Asked in Probate for California on
Q: What happens to a mortgaged property when homeowner dies intestate and nothing is filed in probate.

What if someone is living in property? I.e... Relative, renter, caretaker

Bruce Adrian Last
Bruce Adrian Last answered on Sep 27, 2018

Dear Van Nuys:

When a person dies, their debts live on. This includes mortgages, which are subject neither to the one-year universal statute of limitations from date of death for most creditors (which excludes various government claims) or the creditor's claim procedure. This is because the...
Read more »

View More Answers

1 Answer | Asked in Probate for California on
Q: With CA probate laws what are the rights of the owner of the property that the decedent was living?

Can the property owner remove, sell, or claim items belonging to the decedent until a probate lawyer is assigned?

Does he have the right to ask family members to remove everything off with a deadline?

Bruce Adrian Last
Bruce Adrian Last answered on Sep 24, 2018

Charlotte NC:

I take your question to ask "What are the rights of the estate when the decedent resided in a rental property following death?"

As a general matter, the estate stands in the place of the decedent as a tenant. This means that the estate may keep the rental and store...
Read more »

1 Answer | Asked in Probate for California on
Q: in california. my sister has recieved her share of estate and im told i have to wait another 3 months to get my share

my sister is the admin of the estate. she gifted her share of the estate to her husband to by the real property. they are now the owners of the property and she used her inheritance for it. how can she do that when i cant have my share of the estate until the court approves distribution on nov 27.... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Sep 18, 2018

Dear Glendora:

This question is difficult to answer in this forum. As a general matter, and administrator who self deals, for example buys estate property, needs to obtain court approval first. This would also apply if there was a "straw man" transaction. (A straw man is the use of an...
Read more »

3 Answers | Asked in Probate for California on
Q: Does a mobile home have to go through probate ?

My grandmother recently passed away and i was willed her estate. I was also given power of attorney before she passed. The estate consists of a house , mobile home , car and everything within.

Bruce Adrian Last
Bruce Adrian Last answered on Sep 18, 2018

Dear Sacramento:

Ah, the old mobile home problem. Here are the basics.

1) In California, Mobile Homes are registered through the Department of Housing and Urban Development.

2) If there is a transfer on death beneficiary designated on the title of the Mobile Home, you can...
Read more »

View More Answers

1 Answer | Asked in Probate for California on
Q: My father passed Intestate. I and my 3 siblings agreed to pay funeral expenses using what dad had in his bank account.

I paid in advance the funeral expenses and have since been challenged by a family member to access the checking account that would reimburse me in full. I have demonstrated to the bank my itemized statement and receipt, but the bank still says they cannot release any money to me. This estate is... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Sep 17, 2018

Dear Lake Isabella:

First, do not blame the bank, as it is not the arbitrator of debts owed by you Father's estate.

You also did not mention if the account was a joint account with another person, or designated as a "pay on death" account. But here is some information:

1) If...
Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: My mother had a living trust, now a revocable Trust. I am trustee. However, she had a IRA not In trust.

Beneficiaries predeceased her. Co. wants Letter of Testimentary. How do I get that without probate?

Bruce Adrian Last
Bruce Adrian Last answered on Sep 12, 2018

Dear Oceano:

In California, Letters of Administration (a.k.a Letters Testamentary) are only issued following a noticed Probate hearing.

Assuming that your Mother died in California, so our laws control, there may be alternatives.

If the value of the IRA is less than $150,000...
Read more »

View More Answers

1 Answer | Asked in Probate for California on
Q: All assets went to trust but now I am told I need probate to pursue a lawsuit. What is the cheapest/easiest way in CA?

Prior to death, a trust was set up where I am the Executor of the trust. I want to file a medical malpractice claim but told I need to go through probate. Is there a cheaper or quicker way that doing full probate?

Bruce Adrian Last
Bruce Adrian Last answered on Sep 12, 2018

Kansas City:

I'm afraid not. The appointment of an executor/administrator is required to represent the Decedent. But, this is not necessarily a bad thing, nor that expensive on the front end (or perhaps at all.)

Any lawsuit proceeds for medical malpractice will be paid to the...
Read more »

1 Answer | Asked in Probate for California on
Q: How do I submit a will to the probate court when a family member is claiming that it was lost?
Bruce Adrian Last
Bruce Adrian Last answered on Sep 11, 2018

Dear Woodland Hills:

If you have an original will, you want to lodge the will with the court in the count where the decedent resided at death. The clerk may also want to see a copy of the death certificate prior to lodging the will. (Call and ask the Probate Clerk if this is a requirement...
Read more »

1 Answer | Asked in Probate for California on
Q: What happens if the executor of my mother's will does not return the overpayment of her pension?

My sister is the executor of my mother's will. There was a one month overpayment of her OCER's pension of $3,268.06 on 7/01/2018

She is not responding to OCERs or me. (her brother) I'm the benificiary of the one-time lump sum burial benefit. Do I have standing to take her to small claims... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Sep 10, 2018

Dear Walnut California:

You did not mention whether or not your Mother's estate is going though probate with the courts.

If this is in the Probate Court, you can petition the court for an order requiring her to make the repayment. If she does not, the court can remove her as...
Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: I already have a court date in probate court . I just need order to show I'm successo

I'm over the 35 day thing for ex-parte. I was to contact clerk in dept to see I could come in at 1:30pm . I filed all papers. It's been 4 years of me doing this without a lawyer. Now I'm at the door knocking

Bruce Adrian Last
Bruce Adrian Last answered on Aug 29, 2018

Dear Los Angeles:

I'm really not sure what your question is.

View More Answers

2 Answers | Asked in Employment Law and Probate for California on
Q: Can I Sue a persons estate for back wages. I was a caregiver for 5 years.

I was a live in caregiver for 5 years. I got weekly checks in various amounts, $50.00 - $200.00. No taxes were claimed or reported. I was told many times that I would be "taken care of" in his will. After he passed I found out that I was not mentioned in his wll

Bruce Adrian Last
Bruce Adrian Last answered on Aug 29, 2018

To add to what Mr. Price relayed, there is an extra step if the estate is proceeding though probate.

You will need to file a creditor's claim in the probate case. The representative can then approve or deny the claim. If the claim is denied, you may then file suit. A properly filed...
Read more »

View More Answers

2 Answers | Asked in Intellectual Property, Probate and Civil Litigation for California on
Q: Is probate the proper venue to force return of property? And what are my options?

My father is deceased. Going on 3 years now!! Prior to passing away he lived in in a shared rental house with his caretaker. Myself and my siblings have requested she gather his things and one of us will pick them up. We have gotten ZERO from her. It’s not money or valuable to anyone other... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Aug 28, 2018

Dear Whittier California:

You question peaked my interest, as you are asking how do you obtain a decedent's property with primarily sentimental value, and nominal monetary value.

I think the answer is to use a small estate affidavit under Probate Code section 13100. An example of...
Read more »

View More Answers

3 Answers | Asked in Probate for California on
Q: If the executor named in the will does not file probate can another person named in the will step in and file?
Bruce Adrian Last
Bruce Adrian Last answered on Aug 23, 2018

If the named executor does not act, anyone can request to be appointed as personal representative. (Actually, its called "Administrator with Will Annexed if they are not named as executor or a successor executor.)

While the named executor can file a competing petition and an opposition to...
Read more »

View More Answers

3 Answers | Asked in Probate for California on
Q: What should I do in CA if the executor has not filed probate within the 30 days required and has exceeded 3 months.

My mom is in the will and gets half of the sale of the home. She is pushing her brother to file probate and so far nothing has been done.

Bruce Adrian Last
Bruce Adrian Last answered on Aug 23, 2018

I agree with Mr. Palley.

Also, the court may not take kindly to the brother delaying the matter, and failing to lodge the will within the required time period. (There is no "deadline" by which Probate needs to be opened, but there is a deadline to lodge the will with the court.) This means...
Read more »

View More Answers

3 Answers | Asked in Probate for California on
Q: What is the correct title for an 850 petition, and how much detail should I go into for the court?

In 2009, my grandmother paid a real estate broker (referred by a church member) draw up a revocable living trust for her house (it's listed in exhibit A of the trust), he didn't tell her she needed a quitclaim deed. She died 2/11/18 not realizing this was an issue. My Aunt is successor trustee and... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Aug 23, 2018

Dear Los Angeles:

The court will not should not care about the time between the creation of the Trust and the date of death. They will care that their was an intent to transfer the home into the Trust. If the trust has incorporation language, for example "All property listed on Exhibit A is...
Read more »

View More Answers

2 Answers | Asked in Probate for California on
Q: How can I get some help with a small estate affidavit. I need help with documentation prep & any follow up needed.

My mother is recently deceased and the insurance company denied her claim. They did however, mail me a check to the estate of my deceased mother. There is no estate or a need for one or probate, there is no assets, money, property etc and I am the Survivor/Heir/Beneficiary and Executor. I was... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Aug 22, 2018

Long Beach, CA:

The Sacramento County Law Library offers a sample affidavit as part of their website's forms page.

https://saclaw.org/legal-forms/

Depending on the insurance company, it may take an attorney to "goose" this along. It should not take more than one or two hours...
Read more »

View More Answers

1 Answer | Asked in Real Estate Law, Tax Law and Probate for California on
Q: My brother and I have inherited two properties. What's the best option for selling one and paying the least in taxes?

My brother is the executor of the will, and probate process is almost done. We would like to know the options for selling one of the two properties. They are both residential properties in the same city, Modesto. Thanks

Bruce Adrian Last
Bruce Adrian Last answered on Aug 20, 2018

Dear Katy, TX:

Well, you have basically two options: 1) Sell the properties as part of the probate process, or 2) Distribute the properties to yourself and your brother and sell them later. Neither really has any effect on the taxes you will pay as far as capital gains.

When a...
Read more »

1 Answer | Asked in Elder Law and Probate for California on
Q: my brother, the executor of my parents trust is sueing me 4 elder abuse & have me disinherited, i have no money 4 lawer
Bruce Adrian Last
Bruce Adrian Last answered on Aug 16, 2018

Dear Oakland:

I take your question to be looking for an attorney to represent you on a pro bono basis, as it does not ask a legal question.

If you need assistance on finding an attorney, you might try your local county bar association. Most county bar associations operate an...
Read more »

2 Answers | Asked in Estate Planning, Civil Litigation, Elder Law and Probate for California on
Q: My sister had my mother, who was incapacitated,delete me from the trust in which I was the successor trustee, canshedoit

My mother has since passed on November 21, 2017. Her home was sold in 2015. My sister had never informed me of this action and 'my mother never mentioned it because she has no memory. I was told by sis i would recieve nothing and thats the way my mother wanted it and that her daughter had been... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Aug 16, 2018

Dear Ventura:

This is a case where I recommend you obtain legal assistance, both to evaluate the case and provide representation. But, here is some basic information.

You would start by filing a petition with the court to contest the trust on the basis of fraud, undue influence, and...
Read more »

View More Answers

2 Answers | Asked in Probate for California on
Q: Filing an 850 petition only 1 named successor no adverse claims, do I need to file other probate forms&notices first?

My grandmother had a real estate broker (referred by a church member) draw up a revocable living trust, she only wanted to put her house in the trust (it is listed in exhibit A of the trust), he did not tell her she needed a quitclaim deed. She died in Feb., my aunt is named as successor trustee... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Aug 7, 2018

Dear Los Angeles:

Ms. Dunn is correct, the petition is sufficient to request transfer of the property into the trust.

Compliance with the notice provisions (Probate Code s. 851) is key. Aside from the mailed notice, it requires service similar to a civil complaint on: (1) The...
Read more »

View More Answers

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.