California Probate for Real Estate Agents 2017

CALIFORNIA PROBATE FOR REAL ESTATE AGENTSSIRKIN LAW GROUP, P.C.

Probate, Trusts, Estates Conservatorship & Elder Law

http://LosAngelesProbateLawyer.com818-340-4479

21550 Oxnard St. 3rd FlrWoodland Hills, CA 91367

By: Mina N. Sirkin, Attorney

http://LosAngelesProbateLawyer.com/

PROBATE, CONSERVATORSHIPS & TRUSTS

PROBATE:

A COURT PROCEDURE THAT DIRECTS DISTRIBUTION OF ASSETS OF A DECEDENT, WHERE THERE IS A WILL, OR NO WILL/TRUST.

TRUST:

NON-COURT WAY OF DISTRIBUTING ASSETS OF A DECEDENT WHICH ARE TITLED IN THE NAME OF A TRUST

CONSERVATORSHIPS:

A COURT PROCEDURE THAT GIVES AN ADULT THE RIGHT TO MAKE PERSONAL DECISIONS, AND MANAGE ASSETS OF ANOTHER ADULT.

Copyright 2016 Mina Sirkin

NON-PROBATE ASSETS & ALTERNATIVES TO PROBATE

A.In CA, if total assets are under $150,000, there is no probate.a. Collect personal property assets via an Affidavit of Small Estate

B.Succession (No will) to assets under $150,000 is done with a Petition to Determine Succession: Judicial Council Form de310.pdf

C.Non-Probate Assets:

a. Trust Assets

b. Joint Tenancy Assets

c. Pay on Death Assets

d. Beneficiary Designated Assets


Sale of Probate Property

If the Personal Representative has:

a.INDEPENDENT POWERS: No court confirmation hearing is necessary for the sale of the probate property. This type of sale requires a Notice of Proposed Action to all heirs and beneficiaries, before the property can be sold.

b.LIMITED POWERS: The sale of the Probate Real Estate must be confirmed by the Court, and when brought to court, it is subject to overbids in open court.


WHY DO PROBATE PROPERTIES NEED TO BE SOLD?

Probate Properties must be sold for several reasons:

1.To protect the value of the property to the estate, and to prevent squatters from taking possession of the property.

2.To distribute cash to the heirs and beneficiaries.

3.To settle disputes involving the estate, heirs and beneficiaries


SALE OF REAL PROPERTY IN PROBATE COURTIf the Estate Personal Representative has Limited Powers, then several things must happen before you can sell the real property of the estate:

1.The Probate Property must be appraised and inventoried.

2.The appraisal is done by the Probate Referee.

3.There is a Publication in a newspaper of general circulation.

4.The publication date must pass before and offer can be accepted.

5.Once an offer is accepted, then a Report of Sale must be filed with the court and the court will set the matter of the approval of the sale for a hearing.

6.At the hearing, which is usually within 30 days, there is an opportunity for overbidders to come and overbid.

7.After the Court approves the sale, it takes about 2-3 weeks to get an order in Los Angeles County.


WHEN CAN PROBATE PROPERTY BE SOLD?

Probate Real Property may be sold after the Inventory & Appraisal, as the appraisal is required prior to the sale to establish the sale price.

1. If the Decedent died more than a year before the proposed time of the sale, the Probate Property must be reappraised for sale to establish market value.

2.The sale must be within 90% of the Probate Referee’s appraisal, unless the Personal Representative obtains relief from that rule, or unless the property is sold at an auction.


BONDSA bond is an indemnity contract that protects probate estates and conservatorship estates from any wrongdoing by the administrator or conservator.

1. Surety Companies require fiduciaries to be represented by counsel

2.If a surcharge judgment is asserted against a fiduciary, the bond company pays, and then goes after the assets of the fiduciary for indemnity

Options when a person is not bondable:

3.We can ask for a bond waiver, but it is at the discretion of the court

4.Ask for to appoint a Professional Fiduciary instead.

5.Ask for a blocked account: Not possible if there is a mortgage to be paid monthly.

ALWAYS CHECK: Check to see if additional bond is necessary when selling the probate real estate.


SALE OF CONSERVATORSHIP REAL ESTATEWhen a Conservator wants to sell the home of the Conservatee, there are a couple of things that must be done first:

1.The Conservator must obtain the permission of the Probate Court to sell the home of the Consevatee, and to move him/her from his/her home.

2.The Conservatee’s Property must be appraised first by the Probate Referee.

3.A Notice must be published in a newspaper before the sale.

4.The Sale itself is subject to Court Confirmation and overbids.


DISPUTES ABOUT WILLS & TRUSTS

If there is no will, the decedent is said to have died intestate.

A.If there are two wills, and there is a dispute as to which one is valid, there needs to be a TIMELY will contest.

B.Will contests have deadlines that come around very fast.

C.Trust contests have a 120 day contest period which has to be watched very carefully from the date a notice is given.

D.Know the children of homeowners and talk to them.

E.Refer them to counsel who can help.

F. Stay interested in their plight and story.


TYPES OF PROBATE, TRUST & CONSERVATORSHIP CASESLITIGATION IN PROBATE IS NOT ABOUT WHAT YOU THINK. THEY ARE ABOUT EMOTIONS. The most common types of litigation involve:

1. Sibling disputes:a. Siblings often cannot agree on when to sell the real property

b. How much to sell the property?

c. Who will list the property

d. Sometimes, the dispute is about whether one child should get a certain property.

2. Second/ Third Spouse disputes with Children of the Prior Marriage:a. It is common that the decedent left provisions in a will or trust which is not liked by

either the spouse or by the children of the prior marriage.

b. Children of the prior marriage often want the property sold soon after their parent dies.

c. Surviving Spouse usually wants to continue to live in the property for life.


ACCOUNTING ACTIONS

PROBATE, TRUST & CONSERVATORSHIPS ALL HAVE ACCOUNTING REQUIREMENTS:

1. PROBATE ACCOUNTINGS: 1 year from the date Letters of Administration/Letters Testamentary are issued.

2.TRUSTS: Usually 1 year after date of death.

3.CONSERVATORSHIPS: After first year, and then every 2 years, unless the Court sets it for earlier.


LATE ACCOUNTINGS OR EVILS IN ACCOUNTINGSLATE ACCOUNTINGS:

A Court can compel a fiduciary to give an accounting by a certain date.

An objection to an accounting must be filed and given to the fiduciary within the required time.

OTHER ISSUES IN ACCOUNTINGS:

Fiduciary used the money for himself.

Fiduciary used the money for a non-trust/estate matter.

Disloyalties or profiting from estate

Unfair treatment of beneficiaries

Excessive trustee/executor/conservatorship fees requested or taken

Imprudent investments


ABOUT ME:

Mina N. Sirkin

Board Certified Specialist Attorney in Probate, Estate Planning and Trust Law

SIRKIN LAW GROUP. P.C.

21500 Oxnard St. #300

Woodland Hills, CA 91367

818.340.4479

[email protected]

http://LosAngelesProbateLawyer.com

mailto:[email protected]

http://LosAngelesProbateLawyer.com/

California Probate for Real Estate Agents 2017

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Transcript of California Probate for Real Estate Agents 2017