December 14th, 2008 by scott shuttleworth
Not all assets owned by the decedent become "probatable assets". Property that passes outside of probate include property held in joint tenancy or any other form of title where there is a right of survivorship and accounts with a payable on death designation (also referred to as a beneficiary designation) or a transfer on death designation.
Although at first blush determining the assets of the estate seems simple and straightforward, determining assets of the estate is a ripe area for disagreement. Some of the more common examples are allegations as follows:
- Surviving spouse claims property of the estate is their community or separate property.
- Mom or dad put a child’s name on a bank account for convenience but it was not mom or dad’s wishes that it go to the child as a joint account owner. Instead, it was agreed that after death the account would be divided up amongst the son’s siblings (mom and dad’s other children) as the rest of estate was in the will. The argument is that the money was held in trust for the benefit of the other children
- A person, during life, gave something away but did not deliver it before they died. The person was who was given the item files a lawsuit for that item to be delivered in accordance with their agreement.
Claims to determine an asset of the estate must be filed be filed within strict time limits or the claim is forever lost.
An inventory and appraisal of all estate property should be prepared and filed by the Personal Representative within four months of Letters being issued.
See Probate Code
Probate carries with it significant costs, payable primarily to the attorney(s) and executor(s) who administer the estate . The attorney and executor fees are set by California statute and are based on the gross, not net value, of the probatable estate (e.g. You own a home with $500,000 but with a $490,000 loan, fees [...]
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If the liquid assets of the estate are insufficient to pay administrative costs (executors fees, attorneys fees, costs of administration), then assets must be sold in order to pay the costs of administration and/or creditors to the extent the estate can pay them. Administrative costs of probating the estate (court fees, executors fees, attorney’s [...]
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The Personal Representative give notice to those “reasonably ascertainable creditors” and determine the valid creditors of the estate. Generally speaking, a creditor of an estate has the latter of 4 months from the date “Letters” are issued by the court granting authority to the Personal Representative to act on behalf of the Estate or [...]
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A bond is insurance against the malfeasance or neglect of a Personal Representative resulting in a loss to the estate up to the maximum amount of the bond. Bonds are required unless the will expressly waives bond or all beneficiaries of the estate waive bond.
The bond amount will be based upon the net value of [...]
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The Probate process in California is designed to primarily accomplish the following:
Open Probate in Proper Jurisdiction
Establish Last Valid Will of Decedent, if any
Establish and Empower Personal Representative
Establish Bond Amount if Necessary
Determine Probatable Assets of the Decedent
Determine Valid Debts of Decedent
Liquidate Portions of Estate if Necessary to Pay Costs of Administration and Creditors All or Portion [...]
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The Petitioner will usually request to be appointed either executor or administrator of the estate (“Personal Representative”) and that he or she be empowered with certain rights. Typically, these requests are for either full or limited authority to administer the estate under the Independent Administration of Estates Act (“IAEA”). Full IAEA authority means they are [...]
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The person filing the Petition for Probate (“Petitioner”) will request that a will be validated or, if no will, that the estate be administered under the rules for intestate succession (the rules of who gets what when there is no will).
The Probate Petition will typically have a copy of the will they propose to be [...]
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Typically, a California probate takes place in the county where the decedent resided at death by the filing of a Petition for Probate (“Probate Petition”) by a family member. However, where there is real property in a state other than where the decedent resided, an additional ancillary probate is opened in the other state where [...]
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Your estate plan will require others to act on your behalf when you die or if you become incapacitated and unable to make decisions for yourself. Therefore, understanding the differing jobs in managing your estate and understanding what makes a successful nomination is critical. This is an effort to explain these issues.
Successor Trustee:
This [...]
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