California Probate & Estate Planning FAQ
Frequently Asked Questions About California Probate & Estate Planning
Q: Are There any Consequences if we do not Complete Probate Within One Year?
What are the possible consequences of an estate in probate not being completed/closed by the one year date at the Status hearing? I am the administrator of an estate in which a house is being sold, but it will likely not go on the market until April (a better time to sell it), and the one-year status hearing is the end of March. I should’ve sold it by now, but it’s taken longer than anticipated to get it cleaned out, get the heirs to get the things they wanted out of it, etc. I have been working all year on this probate but have a full -time job, a lawyer who does not give me much guidance, and heirs who do not communicate or get along! So, it’s taken longer than it should, according to my lawyer. What will the consequences possibly be? I’m worried about facing the judge, and maybe angry heirs, to explain why it’s not wrapped up yet. [Avvo]
A: I read your question, and it is a shame. A sale of a single house should not be that difficult. Furthermore, it is shameful that your attorney has not provided help or guidance. So, the downside of having waited so long is that there is an additional $200.00 filing fee for the Status Report and a hearing for the attorney to go to explaining just what you stated are the difficulties. You might think about switching attorneys before you sell the house.
Having the right professionals and an attorney who cares make all the difference in probate. I hope this helps ease the stress.
Q: Do I Need to File a Probate Quickly?
A: The short answer is that it is best to file the probate and complete the transfer of the deceased person’s property to the rightful heirs. Eventually, you will have to file the probate in order to transfer the property. That said, under certain circumstances, you actually want to wait to file the probate. Call NOW for a FREE consultation directly with the attorney.
Q: Did the Decedent Owe a Lot of Money?
A: If the Decedent had unsecured debt (a fancy legal term for credit cards and IOUs), then I recommend waiting a year from the date of death to file the probate. The probate code is very specific that unsecured creditors’ (as opposed to secure creditors like a mortgage or car loan) claims have to be brought into the Probate Court within one (1) year of the person’s passing; otherwise, they are null and void. This means that the probate creditor can no longer seek to be paid from the probate if the probate is filed over a year after the date of death.
The secured creditors, mortgages and car loans, since they are holding collateral, are not subject to the one-year rule as they have a right to take the car if the payments are not made, and the lender on the house can start a foreclosure. However, after one (1) year, neither can come after the Probate Estate if, after the sale of the car, they are still owed money. They would then be subject to the one (1) year rule. Call me, and I will listen to your case and properly advise you of the best course of action, even if that means delaying the filing of the Probate.
Q: Are You the Sole Heir and Beneficiary?
A: Generally, if you are the sole heir, then there is no rush to file the probate. This is true unless there is a mortgage on the house. Unless you were authorized pre-death to speak to the mortgage company, the mortgage lender will not speak to you or provide any information to you unless and until you are appointed the Administrator, i.e., letters of Administration are issued by the CA Probate Court. If you are experiencing this predicament, then you need to file the probate in order to have standing (a fancy legal term for the right to talk to them on behalf of the Probate Estate. As to bank accounts, again, if you are not a co-signor or named due-on-death beneficiary on the bank account, you cannot gain access to them until you are appointed the Administrator by the Probate Court. So, if there is no lender (or you can speak to the lender) and you do not need to gain access to the bank accounts, then there is no need to rush the probate.
Q: Is the House Subject to a Reverse Mortgage, or Are You Unable to Make the Monthly Mortgage Payment?
A: If either there is a reverse mortgage on the property or you are unable to make the mortgage payments, then you need to file the probate immediately. The reverse mortgage is not an assumable loan, and you have to inform the loan servicer within 60 days that you are filing the probate, you have retained a real estate broker, and further file a written request for an extension of time to complete the probate and sell the house. Of late, several people believing there was no equity in the house and not wanting to deal with the Probate were about to let their parent’s houses go to foreclosure, but after calling me, I have been able to preserve the equity for the heirs. I advance all the fees, costs and expenses and handle all the hearings, so you do not have to do any heavy lifting. If you really do not want any part of the Probate process, you can appoint me to handle the entire matter for the same fee I would get for being the attorney. It is my job to take the mystery out of the probate process and the related stress. I am your one-stop-shop; look at my reviews. Call me now to discuss your case.
Practical Pointer: Do not be confused with the amount outstanding on a reverse mortgage. The reverse mortgages are written at the full amount of the possible loan amount over the life of the borrower. Almost always, the actual amount owed is significantly less than the stated maximum loan. Call me, and I will explain further.
Q: Can the hospital provide a CERTIFIED death certificate to the responsible person of the deceased?
In Los Angeles, can the hospital provide a CERTIFIED death certificate to the responsible person of the deceased if the mortuary was retained and the details for the accommodations were established prior to death?? The deceased died in the Ambulance. Or do you always have to wait 10-14 days? [Avvo]
A: The hospital cannot issue a death certificate. California Department of Public Health issues death certificates, or you can go to VitalCheck.com, and they handle attaining certified death certificates without leaving your home.
Q: The decedent left behind a mortgage and various creditors. What do I do?
A: Please call me to discuss it immediately. Do not pay any of the creditors. There are special rules in probate when it comes to creditors and them being paid. I can absolutely explain it to you and, in most instances, save the estate significant money.
Mortgages are different. If there is equity in the property, then please pay the mortgage. If you are not sure that the value of the property is greater than the money owed, call me for both a free valuation and evaluation of the property value and your probate. Every situation is different. I know I can devise a plan of action to solve both creditor and mortgage issues, even if a foreclosure has begun. I care, I can help, so CALL NOW.
Q: What’s better, a will or a trust?
A: You probably need both for a complete estate plan that covers all your bases, but whether you have a will, a trust or multiple trusts depends on your needs and goals that are unique to you. I usually recommend a trust-based estate plan that minimizes or avoids probate as much as possible while also providing for special needs or individual circumstances of the beneficiaries. It is still important to have a will, though, to name an executor for your estate, name a guardian for your minor children, make any specific gifts of personal property, and make sure all of your property is accounted for and poured over into your trust.
Q: Can I rip up my old will and make a new one?
A: Rip it up, tear it up, toss it in the fireplace. If you want to revoke a will, the best way to do it is by completely destroying it. Some people try to revoke a will by writing REVOKED on it or crossing out the parts they want to change and writing in new provisions on the same will. These methods might not be effective. In fact, it might actually lead to a will contest and litigation that makes probate take even longer and cost more to get through.
When you make a new will, include a provision that this is your Last Will and Testament and supersedes any other wills that might be floating around. If you just want to revoke an old will first, you can do so by creating a legal document that meets the same requirements for a valid will, meaning it is signed by you and two witnesses (see my page on Wills for information on how to make a valid will). Doing this doesn’t mean someone might not challenge your revocation, but it should hold up in court if you did everything right.
Q: What happens to my will if I left everything to my spouse, but we get divorced?
A: Great time to change your will! If you divorce or remarry, provisions in your will relating to your former spouse can make that part of your will invalid and could cause extra problems in probate. If you just need to change a portion of your will, you can draft a separate document known as a codicil that makes changes to your will. A codicil has to meet legal requirements to be effective, so get a lawyer.
Any time there is a marriage, divorce, birth, death or other change in the family, take a look at your will and see if it needs to be updated. It would be great if estate planning were just a one-time event, but life continues to surprise us, so reviewing all your estate planning documents every few years or whenever a change occurs is a good idea.
Questions You Should Ask
Q: Is the attorney a jack of all trades, meaning when you look at their website and advertisements, do they practice everything from personal injury, criminal law and bankruptcy?
A: If so, stay away as they will not do any one of them great. Seek someone who routinely files probates so they can process the probate smoothly and in a timely fashion.
Q: Do you use paralegals?
A: I am the attorney, and you only work with me, not a paralegal or assistant. From my 30 years’ experience, I know what happens not only in the probate but well after the probate. I give my clients the big picture and inform them of the problems they will face long after the probate with the decisions they make in the probate case.
Contact Our Experienced California Probate & Estate Planning Lawyer Today
The Probate Guy Process is designed to create “Worry-Free Probate Case Management” for you and all parties involved. I only focus on probates, wills and trusts in Southern California, including Anaheim, Buena Park, Compton, Downey, Fullerton, Gardena, La Mirada and Orange. There are NO OUT-OF-POCKET EXPENSES to you; I advance all up-front probate fees and costs. I also take care of all the hearings, so you do not have to go to Court. So, call me now.
