Will-Trust-Probate » Trust Administration

Transferring Small Estates without Probate

sandiegolawfirm — Mon, 30 Jan 2012 16:45:40 +0000

As of January 2012, California law allows inheritors to completely skip probate when the deceased had a “small estate” whose value was no more than $150,000 in ordinary assets and up to $50,000 in real estate. Because numerous items – including cars, jointly owned property, and everything in a living trust – can be excluded in calculating these amounts, this law can help many families avoid the time and costs of going through probate. Here are the steps for a “small estate” transfer.

1. Calculate the value of the assets

In calculating the value of the deceased’s assets and real estate, all items are included except:

• Vehicles, trailers, mobile homes, manufactured homes, commercial coaches, truck campers, floating homes, and vessels without documents;

• Unpaid salary of any amount owing for services in the armed forces, and up to $5,000 owing for services from other employment;

• Joint tenancy property, life estates, and property passing outright to a surviving spouse;

• Multiple-party accounts that pass on death directly to another party on the account; accounts that were payable-on-death to another person; and all real estate or other assets held in a living trust.

Real estate that does not fall into one of these categories must be appraised by a probate referee, and this appraisal must be used to calculate the property’s value.

2. Prepare an affidavit

The next step for the inheritor is to prepare, or have an attorney prepare, a notarized affidavit – a written statement under oath – that they are entitled to the property of the deceased. The affidavit must include various other statements that the law requires, including a truthful statement that no other person has a right to the deceased’s interest in the described property.

Numerous items must be attached to the affidavit. These include:

• A certified copy of the death certificate; :

• Evidence that the decedent owned the property (e.g., stock certificate, bank passbook, storage receipt)

• Reasonable proof of the identity of the persons signing the affidavit (e.g., notarized affidavit, driver’s license)

• An inventory and appraisal of all real estate, if any, owned by the decedent in California

The affidavit must be presented to banks, brokerage firms, and other businesses or individuals holding the deceased’s assets in order to take possession of those assets.

3. Change title to assets

If the deceased had assets with a formal title, such as real estate or a motor vehicle, the title must be changed into the inheritor’s name. Otherwise, the inheritor will not be able to sell or refinance these items.

To transfer real estate, an affidavit must be filed within six months after the death with the Superior Court in the county where the deceased lived. If the deceased was not a California resident, the affidavit may be filed in the county where the property is located. No hearing is set after this filing.

Call San Diego Law Firm for Help with a Small Estate

One of the great advantages of the small estates procedure is that attorneys’ fees are not set by law and are very reasonable. Although transferring a small estate is something you can handle yourself if you have time to fully research the law, it is generally not a good idea. The terms are technical and the legal requirements must be followed to the letter, whether you fully understand them or not. It is very is easy to make mistakes and to overlook things that must be done, such as giving notice to creditors and filing a final income tax return for the deceased with payment of any taxes due from the deceased’s assets before they are distributed.

San Diego Law Firm has years of experience in handling all types of inheritance procedures. When it comes to a small estate, our San Diego probate attorneys can make sure that every “i” is dotted and every “t” is crossed so that you can avoid probate and legally take title to assets and property you have inherited without worrying about later being held responsible for claims against them.

Our small estate fees are reasonable, and we provide considerate, caring customer service at all times. We offer evening appointments so that you do not need to miss work. Please call San Diego Law Firm at (619) 794-0243 to schedule a consultation. We look forward to helping you.

Mending Broken Fences with San Diego Trust and Probate Mediation

sandiegolawfirm — Fri, 28 Oct 2011 20:17:14 +0000

If you’re faced with probate or living trust disputes, through mediation you may be able to get the resolution you need to ease the conflict. It’s worked for many San Diego families. Mediation is a process where you and the other parties meet both separately and then together with a mediator, who’s a neutral third party trained to help resolve disagreements. It’s done outside of court, which means you and the other parties are in control of what happens and can agree on your own resolution, instead of having a judge decide for you. It also saves the time and cost of fighting over the issues in court proceedings. Typical probate and trust disputes that can be resolved through mediation, if the parties are willing, include:

● Disagreements over how property and assets in a living trust are distributed

● Claims of wrongdoing in making or changing a will or living trust, such as undue influence that led to a spouse or child being disinherited

● Claims that the trustee breached his or her legal obligations (fiduciary duties) to act in the beneficiaries’ best interest, such as by being careless or disloyal

● Disagreements over improper trust administration of debts

● Disputes over inheritance, including will contests

These probate, estate, or trust disputes carry the potential to permanently jeopardize family ties, but mediation offers the opportunity to reach a peaceful agreement. It’s a given that everyone will have their differences, and mediation takes into consideration everyone’s goals to find solutions that can be mutually accepted. Not only is probate and trust mediation a good alternative because of family concerns, but it almost always faster and less expensive than having a judge decide the issue.

Keep in mind that the mediator is not your lawyer. In other words, the mediator doesn’t represent you and can’t give you legal advice, which is why parties generally have their own attorneys. Preparing for mediation is critical, and when representing you, San Diego Law Firm will always work to strengthen your legal position and your bargaining power.

We understand the stresses you’re under, especially if you’ve recently lost a loved one, and we’re here to help with the legal challenges. As experienced wills and trusts attorneys, we’ll work to maximize your options and give you the advice you need during mediation to make informed decisions. We’ll also prepare or carefully review any mediated agreement and ensure it’s properly handled so it becomes a binding court judgment. Contact San Diego Law Firm’s skilled trust and probate lawyers at (619) 794-0243.

Trust Administration Problems: How to Handle an Ineffective Trustee

sandiegolawfirm — Fri, 29 Jul 2011 21:22:56 +0000

Probate can be avoided with a living trust. Once the person who created the trust passes away, the “trustee” (a person named in the trust to assume this role) becomes responsible for “administrating” the trust. This means trustee is legally required to manage and distribute the property of the living trust in the exact way specified by the living trust document. Unfortunately, though, sometimes the chosen trustee is ineffective and must be removed by a court order. In this case, the court will name a different person to be the new trustee.

Requirements for Trustee Removal

California probate law says that a trustee can be removed for reasons specified in the trust document, or by the California Superior Court acting on its own, or by a “petition” (formal legal request) filed by a person named in the trust as a “beneficiary” to inherit some or all of the trust’s personal property, money, and/or real estate. Some of the common reasons a trustee is removed are:

● The trustee is not following the exact directions of the trust;

● The trustee is insolvent (broke) or otherwise unfit to administer the trust;

● There is more than one trustee and they are not cooperating with each other, in a way that hurts the administration of the trust;

● The trustee doesn’t do the administration in the way the law requires, or has refused to take on the job;

● The trustee is being overpaid, when taking into account the value of the trust assets and the trustee’s responsibilities.

Trustee Responsibilities

California probate law lists things the trustee must do when managing and administering a trust. The trustee must give all the beneficiaries an annual accounting, which is a report on the assets, debts, and amounts received and spent by the trust. The trustee must also give the beneficiaries a report with details of the terms of the trust and a report of the trustee’s actions in administering the trust. The trustee must act prudently when investing living trust funds; they cannot be put into risky investments.

Often, a beneficiary decides to remove a trustee because the trustee is either not doing what the living trust document requires, or is not providing complete information to the beneficiary about the trust property, how trust property was invested, and/or how much and when the trustee was paid by the trust. If the trustee and beneficiary are no longer communicating well, or are not in agreement on how the trust property should be administered, the next step for the beneficiary is to seek legal advice and help from an experienced probate attorney.

Petition for Removal

If the trustee and a beneficiary cannot agree on how the trust is to be managed and administered, that beneficiary can ask the court to remove the trustee, which means order the trustee to give up all control of the trust property. This is done by hiring an experienced probate attorney to file a court petition requesting that the trustee removed. The petition is accompanied by a signed declaration from the beneficiary stating the facts showing the reasons why the trustee should be removed. If the court grants the petition, it will remove the trustee and appoint another person as the new trustee.

California probate law concerning trustee removal is complicated and not easy to understand. If you are a beneficiary of a trust, and are concerned that the trustee may be mismanaging trust property, our experienced will, trust, and probate attorneys can advise you on your options. If you decide the trustee should be removed, we can handle all the court paperwork and hearings. Please contact San Diego Law Firm today at (619) 794-0243 to schedule an appointment. We look forward to helping you.

All is Not Done Behind Closed Doors: Accounting to Beneficiaries of a Living Trust or Probate Estate

sandiegolawfirm — Fri, 08 Jan 2010 17:59:03 +0000

To make sure that beneficiaries to a will or living trust aren’t kept in the dark when it comes to the money being spent, earned, and distributed from the estate, California law requires that certain people who are in charge of handling the estate or trust property provide accountings. The right to an accounting becomes even more important when administering a living trust because there’s much less court oversight than there is when property is distributed by the probate court when a person passes away with or without a will. Every trust designates a “trustee” to handle administration of the trust and distribution of its assets. If a person dies with a will, these responsibilities can fall on the “executor” who was named in the will, and when neither a trust nor a will is left behind, an “administrator” will be appointed for the job. In carrying out his or her legal responsibilities, the person in charge of administering the assets needs to keep careful records and report to beneficiaries about the trust or will’s administration. This usually means providing beneficiaries with a comprehensive accounting detailing all of the estate’s receipts and distributions. This can help ensure things are being handled efficiently and prevent potential wrongdoing.

For many, accountings are provided on time and with no need for objection. For others, a series of challenges arise that have to be dealt with quickly before time runs out. Beneficiaries sometimes find themselves in one or more of the following situations:

- The trustee or executor (or other fiduciary) doesn’t provide the required accounting and refuses to do so

- An account is made, but it turns out to be incomplete or incorrect

- You haven’t received required distributions from your share of the inheritance

- In managing the trust property or estate, you believe the trustee or executor may have spent or invested money carelessly or even wastefully

If you have similar concerns, we’ll work to quickly resolve the issue, and when needed we’ll petition the court for an order directing the trustee or other administrator to provide the accounting, or object to the accounting that’s been given. Keep in mind that deadlines apply to your challenge of an accounting. If you’re serving as a trustee, executor, or other fiduciary, we can prepare any accountings you’ll be required to submit. Even if an accounting is waived, it’s often wise for executors and trustees to create an accounting that records all transactions. No matter what the issue, we know how important it is to handle these matters tactfully and to strive to maintain harmony in your family after a loved one has passed away. At the same time, it’s important to make sure your rights as a beneficiary are dealt with fairly, and to do so we can begin an accounting action or take any other necessary steps. If you are serving as a trustee, executor, administrator, or other fiduciary, we’ll provide you with the guidance you need to properly carry out your many other duties in opening a probate or administering a living trust. Act to protect your inheritance by contacting San Diego Law Firm’s experienced wills, trusts, and probate attorneys at (619) 794-0243.