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California Probate Questions & Answers
Q: Is it fraud to skip over a named successor trustee, and instead nominate and fill the vacancy with an outside party?

The successor trustee who was handling the administration of my irrevocable trust died. My Aunt was named second as a successor but she declined.

The next successor trustee named in the trust instrument was a bank but the bank was never informed of this. My Dad's widow, (an omitted... Read more »

Jackie Marie Howard
Jackie Marie Howard answered on May 3, 2021

You said the fiduciary was court appointed. Did you get notice of the ex parte hearing? More facts would be needed to determine if you have any recourse. Seek counsel for a private consultation so that you can provide all the facts of your situation for a thorough evaluation.

1 Answer | Asked in Probate for California on
Q: Is it possible to get a second opinion on a probate case. I feel my lawyer doesn't have my best interest at heart

Is it a common practice when you're lawyer files documents with the Court to have 16 documents sent back to you because they have been filed wrong??

James Edward Berge
James Edward Berge answered on Apr 28, 2021

No, I would hope not. Give me a call if you have any questions. Probate is my specialty.

1 Answer | Asked in Probate for California on
Q: This pertains to California Probate Law and co-executors of a Will

My relative named co-executors on a joint Will with his wife. He named my father or his appointee and another relative on his wife's side to be co-executors. This issue now is that my father passed prior to my relative and his wife and there was no other appointee named by my father. We... Read more »

Jackie Marie Howard
Jackie Marie Howard answered on Apr 23, 2021

My condolences for your loss. It would be wise to seek local probate counsel to assist in evaluating the document(s) and all of the specific details. The Will language may define what happens if no appointee is named. People attempt to challenge Wills all the time; however, that doesn't... Read more »

2 Answers | Asked in Probate for California on
Q: Can my father go through my personal belongings in search for things he thinks he should have inherited?

I have lived in my grandparents home since my grandmother passed 30 yrs ago. I've lived here and raised a family here for 30 years. My uncle owned the house but didn't live there with us he lived in the house 3 doors down. He allowed my family and I to live there rent free. When he passed... Read more »

Nina Whitehurst
Nina Whitehurst answered on Apr 23, 2021

Of course you can take with you the things that you own.

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1 Answer | Asked in Probate for California on
Q: Probate Bond Waver

I have been asked by my mother in laws attorney regarding my father’s estate to sign a bond waver. Please advise on the why’s and why not of doing this?

My father died in 2019, no will and two property’s left in his name & listed separately property.

Jackie Marie Howard
Jackie Marie Howard answered on Apr 20, 2021

My condolences for your loss. A probate bond protects the estate in case the personal representative acts wrongfully (i.e. steals estate money, etc.). It is a personal decision to waive it or not. If it is waived, the estate does not have to pay the annual bond premium; however, if the personal... Read more »

1 Answer | Asked in Probate for California on
Q: My uncle died in 2019, I provided notice a week after he died. He left property to me in his trust.

Now my other uncle has served me with a lawsuit a month ago to invalidate the trust. The property was left to me in the trust and I’ve already transferred into my name. What would prevent me from just selling the property or giving it to someone ?

James Edward Berge
James Edward Berge answered on Apr 19, 2021

Obviously, as the legal owner of the property, you can sell it or give it away, but if your uncle can prove by clear and convincing evidence that you weren't entitled to the property, then you can be held accountable for the sale proceeds or the fair market value of the gift, so sell or gift... Read more »

1 Answer | Asked in Probate for California on
Q: My uncle left me property in his rust, I transferred that property into my name. Now relatives are taking me to probate

To invalidate the trust and take the property. Can they do this ? It’s been 2 years and the property is in my name

James Edward Berge
James Edward Berge answered on Apr 19, 2021

More than likely, yes. Did you provide the contestants with notice of the trust as required by California Probate Code section 16061.7 when your uncle died? If not, there’s nothing to prevent the lawsuit from continuing until it’s resolved. There are many reasons why a trust may be invalid,... Read more »

2 Answers | Asked in Probate for California on
Q: Probate for unclaimed property?

My mother died years ago. All she had was a bank account that I took control of. No house of her own or valuables. She had no other children but me. Late last year, I received a letter in the mail from a company called OCWEN that she has unclaimed property in the value of $1273. I contact them... Read more »

Jackie Marie Howard
Jackie Marie Howard answered on Apr 14, 2021

Oftentimes when this issue comes up as you have described, the company is located outside of California and is not aware of our small estate laws. Having counsel represent you with the company can generally resolves this lack of understanding by the company.

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2 Answers | Asked in Estate Planning, Real Estate Law, Civil Rights and Probate for California on
Q: Do children have any rights to their deceased dad's stuff if his mother never informed them of his death?

2 days ago my brother told me that our dad died last March. I live in Missouri and my brother was in prison at the time.The coroner told me that our dad's mom made arrangements for everything. My father told me that there were things he was wanted me to have (pictures and a car). I'm the... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

In California, the decedent’s children are the intestate heirs of the decedent and not the decedent’s parents. If dad died testate (with a Will), the beneficiaries under that Will are entitled to his property. Demand to know why your dad’s mom thinks she’s entitled to the property. If... Read more »

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5 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: Should my partner and I purchase our home as a joint tenancy or TIC? We are unmarried; He has kids from prior marriage.

We both want to be able to remain in the home, make improvements, or sell if the other passes away. He wants to ensure his children to receive his share of the proceeds if the house is sold after his death. We may get married and have more children in the future. What is the best ownership... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Apr 12, 2021

TIC, or put it in a Trust.

Joint tenancy would mean that when A dies, B gets it all. B may not remember or want to give assets to the children of A. B might just meet a new person after the funeral and forget A completely! It happens, and poor A's kids get left out in the cold....
Read more »

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2 Answers | Asked in Probate for California on
Q: my mother passed away I know the property needs to go to probate but I don't know where to start this process
John B. Palley
John B. Palley answered on Apr 9, 2021

The key is getting started! Get that ball rolling by filing the initial petition. We usually have the initial documents ready the same day and can be on file in most counties in California within two business days. Feel free to reach out if you want to discuss the particulars.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: I am 50/50 owner of a house My brother lives in now am i able to move in at anytime since i am 50 owner to in California

just found out i was part owner, brother kept trust from me.

James Edward Berge
James Edward Berge answered on Apr 8, 2021

If you hold title to the property as tenants in common (both of your names are on the deed), then both of you have the equal right to the use and possession of the property absent an agreement between the two of you to the contrary. But if this is trust owned property and your brother is trustee... Read more »

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1 Answer | Asked in Probate for California on
Q: My father died without a will and did not add beneficiaries to his bank account and 7 vacant lands that he owned.

He owns those 7 vacant lands ( all in California) with his siblings and was 50% owner of each. These lands’ values vary from $20k to $500k. I know these lands will have to go to probate , however, can my mother file a small estate affidavit for his bank account ( only has about $30k)?

Genene N. Dunn
Genene N. Dunn answered on Mar 31, 2021

The small estate affidavit involves ALL assets outside of trust or that would otherwise be subject to probate. So if there are other assets that would be subject to probate that make the total value above $166,250.00, then a small estate affidavit would not work

2 Answers | Asked in Estate Planning and Probate for California on
Q: Hi...I live in California (LA County). My wife was the sole beneficiary on her older brother's 401k account.

Her brother died of Covid on January 19th. My wife then died of Covid 4 days later. What happens to the 401k account? Her brother had a daughter, but she wasn't listed as a beneficiary. Does the 401k pass to the daughter, or does it go to my wife's estate?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 29, 2021

It should go to your wife's estate.

A Will or a Trust normally has provisions regarding this sort of situation, but unless the 401K administrator had the brother sign something unusual, then the money would still go to the estate of your wife. But check with the administrator.

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1 Answer | Asked in Probate for California on
Q: Confused about the meaning of who is a "party of this cause"

I want to file a Request For Special Notice (Form DE-154) for a probate case in Los Angeles, California. I'm confused about statement #1 in the Proof Of Service By Mail part. It says "1. I am over the age of 18 and not a party to this cause. I am a resident of or employed in the county... Read more »

James Edward Berge
James Edward Berge answered on Mar 28, 2021

No, your husband is not a party to the cause if he’s not a beneficiary or an heir to the estate, or otherwise has an interest in the outcome of the case. Marriage by itself does not make him a party to the cause. However, that being said, you would be advised to find an independent person in... Read more »

1 Answer | Asked in Probate for California on
Q: My aunt died in 2012 with a Will saying she left $25k and her “community property interest “ in her home to me but only

After he moved or died. He sold their home, bought another and died in 10/20 leaving all to his daughter. Do I have a remedy to collect my aunts share of CP left to me in her Will from his estate ? they had no kids together and a 30 + year marriage. He created a Trust after her death but didn’t... Read more »

David Ostrove
David Ostrove answered on Mar 27, 2021

As of the date of your Aunt's death, you own her 1/2 of the community property, subject to her spouse's right to live there. At surviving husband's death you should have received your Aunt's remaining 1/2 of the community property. She can only give away her 1/2 of the... Read more »

1 Answer | Asked in Probate for California on
Q: original will with petition to determine succession to real property (no probate proceeding pending/has started)?

Hi. I've read that you would need to provide a copy of the will to go along with the petition. I'm assuming the copy would have to be certified, yes?

Also, if not filed with the court already (but should have been done within some time frame that I just found out about, so... Read more »

James Edward Berge
James Edward Berge answered on Mar 25, 2021

All original Wills get lodged (filed) with the Court separately from the Petition. Only original Wills, not certified Wills or copies of Wills. Once lodged, your Petition can reference the date of the filing with the Court.

There is no penalty for the late filing of the Will. However, if...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: Claim Homeowner exemption on deceased parent's home

My father passed away in October, 2020. He is a resident in Santa Barbara County. I have a probate case filed with probate branch in Santa Barbara County. I received a Homeowner Exemption termination Notice from county assessor's office. I live in Texas. I would like to know which option... Read more »

James Edward Berge
James Edward Berge answered on Mar 22, 2021

Since your father passed away before 2/15/2021, you should qualify for the parent to child reassessment exemption under California Prop 13/58 regardless of whether this is your principal residence, a second home, rental home, or commercial property. The homeowner exemption merely reduces your... Read more »

1 Answer | Asked in Family Law, Elder Law and Probate for California on
Q: If 2 people are Co - Trustees & POA. If one person oversteps their Fiduciary duty to change Beneficiaries on an annuity?

The Trustor is still alive but incapacitated. Is that illegal?

Maurice Mandel II
Maurice Mandel II answered on Mar 19, 2021

Possibly. And it could even possibly be Criminal Elder Financial abuse. You should consult with a local attorney in Conservatorships/probate/elder law.

Justia disclaimers below, incorporated herein.

2 Answers | Asked in Probate for California on
Q: Can I be the petitioner in my Grandmother to Mother's succession

Everyone has passed on in life but there is not a succession in place. All of my Grandparents kids which are my parents or uncles/aunts, can I be the petitioner in the succession.

Gerald Barry Dorfman
Gerald Barry Dorfman answered on Mar 18, 2021

Yes.

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