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California Probate Questions & Answers
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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3 Answers | Asked in Estate Planning and Probate for California on
Q: Is there anything that has to be filed when one person in a joint trust dies? If so can I find out through county record
Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Mar 14, 2021

Not necessarily. If title to real property is involved, an affidavit of death may have been filed with the county recorder to change title. It will not give you the specific language/ contents of the trust, however.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: Can my stepmom change a joint trust after my father has died to try to remove me from inheriting?

I honestly do not trust her not to try and pull something so her kids get it all so I am just curious. She doesn’t tell me anything and I have not seen any paperwork. I was just told by them years ago before my father passed away.

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Mar 14, 2021

It is entirely possible. It depends on how the trust is written and whether it was made irrevocable by your father’s death. Without seeing the document, no attorney can tell you for sure.

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2 Answers | Asked in Estate Planning, Contracts and Probate for California on
Q: I gave my kids each 25% of my trust my mom put it in her will can I take it back from my kids

My mom asked each on of my brothers and sisters if we wanted to give our kids any shares of ours in the trust, before she passed away in 2003 I said yes so each one of my kids receive 25 % each month. My son I want to remove him from getting another penny out of my share he doesn't deserve it... Read more »

Jackie Marie Howard
Jackie Marie Howard answered on Mar 12, 2021

Yes. It would be wise to consult with an experienced estate planning attorney, who would be able to advise you thoroughly, regarding the procedure and ramifications of omitting your son from your Estate.

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3 Answers | Asked in Estate Planning and Probate for California on
Q: If I am named a beneficiary in a trust does the trustee have to provide me with a copy of the trust?

My dad died a couple years ago and I just found out he had a trust set up before he died that names me a beneficiary but my stepmom won't give me a copy or tell me anything about it. She has already sold off a lot of his things and I just discovered she sold their home and moved across the... Read more »

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

Yes, you’re entitled to a copy of the trust agreement. Google search California Probate Code section 16061.7 to see what you’re entitled to. Make sure the trustee is aware of this code section. Failure to abide by this rule could result in suspension of her powers, and her removal as... Read more »

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2 Answers | Asked in Banking, Civil Rights, Probate and Small Claims for California on
Q: If I transfer money into my boyfriends bank account, and then use that money, is it considered a gift from him in court?

The amount was $300 and I used it the same day I transferred it. I bought myself something with that money and now he is trying to say the item is his since the money (did not originally) came out of his bank account.

Louis George Fazzi
Louis George Fazzi answered on Mar 10, 2021

The answer is "it depends." Much more information is needed.

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1 Answer | Asked in Probate for California on
Q: mom died in CA, ONLY asset is bank account in MA. MA bank will NOT accept CA small estate affidavit. any suggestions?

Have letter from bank specifically declining CA Affidavit for collection of personal property, probate code section 13100-13116. Stating they require: "a certified copy of the court document appointing you as person representative, executor, or other like fiduciary of the estate of the... Read more »

Gerald Barry Dorfman
Gerald Barry Dorfman answered on Mar 9, 2021

If the bank account has no beneficiary listed, and no co-owner, then it is part of the estate, so the estate value is not zero. Being in a bank out of state does not remove it from the estate. Not sure why you don't know the value. Do you not have access to her mail/bank statements? If you... Read more »

1 Answer | Asked in Tax Law and Probate for California on
Q: I am 75, my estranged daughter is 35. I have read that an UGMA can be ended if I pay IRS 10%

and then pay the taxes at my own rate. Can anyone suggest what legal book or IRS ruling I can consult? I plan to hire an attorney, but so many of you seem to think this can't be done.

Barry L. Adams
Barry L. Adams answered on Mar 9, 2021

When you set up the UGMA account, you made a completed gift to the minor recipient. You cannot now revoke that gift. Therefore, it is not a tax issue - it is a legal issue.

2 Answers | Asked in Estate Planning and Probate for California on
Q: What if a non-probate asset is listed in a Will?

If you were appointed by the court to handle the estate or, if you were to file a petition to determine success to real property, and discover that an asset listed in the Will turned out to be a non-probate asset, wouldn't you leave that out of the Inventory and Appraisal forms since they only... Read more »

James Edward Berge
James Edward Berge answered on Mar 6, 2021

Yes, if you were appointed to be the executor of an estate, you would omit any assets from the estate inventory that pass by some other means, such as by right of survivorship or by beneficiary designation or by spousal property petition. You’re not eligible to file a petition to determine... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: my mother-in-law passed away, her son, my husband, had passed away years ago, am I considered her next of kin?

For the purpose of getting a certified death certificate, am I legally allowed to request it? She had other children who don't talk to me so I cannot ask them for it. I need a certified death certificate in order to evict those very children from my property.

Julie King
Julie King answered on Mar 5, 2021

You should be able to get a death certificate from the County Clerk’s office. Go to the website of the Clerk’s office for the county in which she lived if she was a California resident. (If she was not a resident of California, but died in California, then you would check the county in which... Read more »

2 Answers | Asked in Estate Planning, Elder Law, Identity Theft and Probate for California on
Q: Family member passed away, discovered money was stolen courtesy of the bank. What can we do?

A family member recently passed away while settling affairs we found out a family member was stealing his money by forging checks. What legal recourse do we have based on financial exploitation? He was 64 and disabled and required assistance. The banks informed us of the questionable activity at... Read more »

Bill Sweeney
Bill Sweeney answered on Mar 3, 2021

Presumably, identify theft has occurred. If so, you might find the following web address helpful.

https://oag.ca.gov/idtheft/facts/victim-checklist

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