Serving Quartz Hill and the Surrounding Areas

"Your guide through the legal minefield"

Robert L. Plunkett Attorney At Law-Logo READ OUR REVIEWS
Gavel and book

Welcome to my blog in the weeks to come, I will post answers to common questions concerning estate planning.

 

 

By plunkettrob3585241, Jun 7 2017 08:12PM

It depends on the circumstances. If the estate has not been opened, then you or someone else with priority for appointment can open the estate and become its executor (if nominated as executor in the will) or administrator (if not nominated in the will). Once appointed, you can seek relief under California Probate Code Section 850. Basically, the estate sues the person who took property properly belonging to the estate.

If the estate is pending, you should inform the personal representative of the situation. If he or she will not take action, there are various ways of compelling it. If the wrongdoer is also the personal representative or seeking to be appointed as such, you can file your objections to the appointment or to the final account. You can also seek to compel an accounting as well as take other action.

If the wrongdoer has been appointed as executor, administrator, guardian, conservator or any other fiduciary office that requires a bond, you can decide to pursue the action against the bonding company. The purpose of such bonds is to protect the people interested in the estate from damage from the wrongful acts of fiduciaries. So, even if the person has fled, has no money, etc. the bonding company is required to make good on the bonded person's wrong.

Time is of the essence. Your action might be defeated if the statute of limitations runs, the fiduciary has been discharged or the action otherwise becomes time barred.

The legal opinions here are general and may not apply to specific situations. If you have a specific legal problem, contact an attorney.

Robert L. Plunkett, Esq.

(661) 722-3585

robplunkett@robplunkett.com

By plunkettrob3585241, Mar 27 2017 05:31PM

First off, they are not talking about the kind of letter you mail. They are referring to Letters Testamentary or Letters of Administration. The term "Letters" refers to the paper giving the person in charge of a deceased person's estate the power to act on behalf of that estate.

Getting Letters is no simple matter. Letters are only issued as part of a probate proceeding. As I explained in two of my previous posts, this is very expensive, and takes a long time,. In demanding Letters, the bank etc. is telling you to start a probate. Fortunately, even though the institution is saying you need Letters, we may be able to get what you need without getting Letters.

The issues of whether you really need Letters, whether you can get Letters and how you can possibly accomplish what you want without Letters are issues I am familiar with. Call (661) 722-3585 for an appointment, I do not charge for consultations concerning the issues mentioned in this post.

The legal opinions stated here are general and do not necessarily apply to specific situations. If you have a specific legal problem, you should contact an attorney.

By plunkettrob3585241, Feb 16 2017 10:17PM

There are two basic kinds of expenses associated with a probate, court costs and fees.

COURT COSTS

Not all court costs are paid to the court. For instance, probate referee fees and bond premiums are paid to the referee and bonding company but are considered to be court costs.

This is not a comprehensive list. It is basic. You will probably have court costs in addition to the ones described here.

As of February 16, 2017, the filing fee for the initial probate petition, and most other things you are likely to file in a probate, is $465.00. You will have to pay at least two of these, one to file the petition and one to file the final account. That is $930.00 total. This fee has gone up numerous times and is likely to go up again.

You will need to pay an adjudicated newspaper to publish a notice that the probate petition is pending. The cost of that varies according to where the decedent resided when he or she died. In Lancaster, California, where my office is located, it costs $755.00. This has also gone up numerous times and is likely to go up again.

An Inventory and Appraisal needs to be prepared. The probate referee who appraises everything except cash and cash equivalent also charges a fee that varies according to the value of the items appraised.

Unless it is waived, a bond must be posted. Depending on the amount of the bond, the annual premium will be hundreds or thousands of dollars a year. The first year premium is nonrefundable. Starting the second year, the last bond premium paid is refundable pro rata for the unused portion of the year.

ATTORNEY FEES AND PERSONAL REPRESENTATIVE COMMISSIONS

There are two types of attorney fees, ordinary fees and extraordinary fees. The good news is that they aren’t payable until the court orders them, usually near the end of the process. The bad news is the amount.

Ordinary fees are paid regardless of how much work the attorney did on the estate. They are payable on the following schedule:

:

4% of the first $100,000 of the gross value of the probate estate.

3% of the next $100,000.

2% of the next $800,000.

1% of the next $9 million.

.5% of the next $15 million.

Gross value means the value without subtracting any debts, liens, etc. A $300,000 house with a debt of $290,000 on would be a $300,000 asset and an estate that had nothing in it but that house would entitle the attorney to $9,000 in ordinary attorney fees.

Then there are the extraordinary attorney fees. These are in addition to the ordinary fees. They are payable for a very long list of things an attorney does in an estate that the courts consider extraordinary. They include some things that are unquestionably extraordinary like litigation and some that you might expect would be included in ordinary services like talking to creditors. These are charged at the usual rate attorneys, like the one who is getting the fees, normally charge, figure $300 as the bare minimum per hour.

The personal representative is entitled to ordinary commissions on the same schedule as I wrote up above for ordinary attorney fees as well as extraordinary commissions generally calculated on what it would cost to have an outsider do similar work.

In most cases, the court costs alone are more than I charge for a living trust. A lawyer can easily make 10 times as much money doing a probate than he or she would charge for a living trust and do 10 times as much work. The heirs pay much more and do a lot more work when their loved one fails to properly prepare his or her estate.

The opinions stated herein are general and might not apply to specific situations. If you have a specific legal problem, you should contact an attorney.

By plunkettrob3585241, Dec 1 2016 06:15PM

Probates in California have built-in delays. First, the court has to hear the probate petition. How quickly it is heard depends on the court and the particular judge. It could be six weeks. It could be six months. It could be slightly shorter or a lot longer. Then, the court has to sign the papers giving the personal representative the power to administer the estate. That can take days or weeks.

Once the petitioner is appointed and the papers issued, creditors have to be given four more months to file claims. At the end of that four months, the Final Account, etc. can be filed. The Final Account also needs to be heard by the court, which means another delay like that for the original petition.

If the Final Account, etc. is approved, the order must be signed and the assets distributed. Once the distribution is completed, including recording all necessary documents, and when all receipts and releases have been signed, the personal representative can petition for discharge. Once the discharge is granted and the bond, if any, has been exonerated, the case can be closed.

There is no limit on how long it can take, though at some point the court will have to be informed as to why it is taking so long. Some have taken decades.

This describes a normal probate proceeding. Even where someone has died without taking the necessary steps to avoid probate, there may still be a way to bypass the court process altogether or an available proceeding that is less expensive and time-consuming than a regular probate. I am familiar with these and may discuss some of them later.

The statements here are general and may not apply to specific situations. If you have a specific legal problem, contact an attorney.

Robert

By plunkettrob3585241, Nov 22 2016 06:45PM

ANSWER: No, but living trusts, done properly, do.

Wills are simply instructions to the court as to who is to get your property when you pass away as well as who you want to be in charge of your estate. As long as you pass away owning assets, subject to probate, whose value exceeds a certain amount, a probate will be necessary.

I’ll explain the hows and whys later, but for now, I’ll give you the simple version of why trusts can keep your estate out of probate. Put simply, a properly done trust takes your assets out of your estate and makes them trust assets. Then, technically, you die without any assets that are subject to probate.

This is a big subject and I plan to post more details and information in the weeks to come.

You can call or email me if you want more information about this. My phone number is (661) 722-3585 and my email is robplunkett@robplunkett.com.

The opinions stated herein are general and might not apply to specific situations. If you have a specific legal problem, you should contact and attorney.

RSS Feed

Web feed

ANSWERS TO QUESTIONS ABOUT ESTATE PLANNING, PROBATE, WILL AND RELATED FIELDS