logging in or signing up Filing an Estate in Probate Court foresight Download Post to : URL : Related Presentations : Share Add to Flag Embed Email Send to Blogs and Networks Add to Channel Uploaded from authorPOINT lite Insert YouTube videos in PowerPont slides with aS Desktop Copy embed code: (To copy code, click on the text box) Embed: URL: Thumbnail: WordPress Embed Customize Embed The presentation is successfully added In Your Favorites. Views: 574 Category: Entertainment License: All Rights Reserved Like it (0) Dislike it (0) Added: June 16, 2010 This Presentation is Public Favorites: 0 Presentation Description No description available. Comments Posting comment... By: sdominguez (10 month(s) ago) I live in Utah. I found some great information at this website regarding probate, http://www.doineedprobate.com, which is very helpful in determining if a probate is needed in order to transfer real property. Saving..... Post Reply Close Saving..... Edit Comment Close Premium member Presentation Transcript TAKING THE FIRST STEP:FILING AN ESTATEIN PROBATE COURTpresented by:Thomas G. Martin, Esq. : TAKING THE FIRST STEP:FILING AN ESTATEIN PROBATE COURTpresented by:Thomas G. Martin, Esq. NBI SeminarIrvine, California June 16, 2010 Thomas G. Martin : Thomas G. Martin CEO/Pres., Foresight Legal Group, P.C. Yale College, B.A. UCLA Law, J.D. Board Member, Estate Planning & Trust Council of Long Beach Advisory Board Member, Miller Children’s Hospital LACBA, Trusts & Estates Section State Bar of Cal., Trusts & Estates Section Disclaimer : Disclaimer This presentation is provided for information and educational purposes only. This presentation does not constitute legal, accounting or other professional advice. Only through a personal, confidential consultation with qualified legal counsel can anyone properly evaluate their own unique probate challenges and determine what, if any, appropriate legal strategies and tactics should be implemented to meet those challenges. IRS Circular 230 Disclaimer : IRS Circular 230 Disclaimer “Nothing in this presentation is intended or written to be used, and cannot be used by any person for the purpose of avoiding tax penalties regarding any transactions or matters addressed herein. You should always seek advice from independent tax advisors regarding the same.” Agenda : Agenda Core Topics: Small Estate – What it is and How to File Regular Estate Estate Timetable – What You Need to Do Proving the Will Challenging the Will “Small Estate” : “Small Estate” What it is and How to File... Think: : Think: Alternatives to Formal Probate Contractual Transfers : Contractual Transfers Slide 9: Contractual Transfers What Do They Do? Contractual transfers allow for the transfer of property outside of the probate process. Slide 10: Examples: Joint tenancy assets Community Property WROS Assets held in trust Joint accounts Pay on Death (POD) accounts Transfer on Death (TOD) Totten Trust accounts Beneficiary Designations Contractual Transfers Affidavit for Collection or Transfer of Personal Property : Affidavit for Collection or Transfer of Personal Property Slide 12: Affidavit for Collection/Transfer of Personal Property What Does It Do? Claimant may take title to personal property (e.g., money, money owed, tangible property such as furniture, artwork, etc.) by simply presenting an affidavit to property holders. Slide 13: Affidavit for Collection/Transfer of Personal Property Prerequisites: Waiting Period: 40 Days Gross Estate Value < $100,000 (all real and personal property owned at DOD - exclusions) No Administration or PR’s consent (PC §§13101(a)(4), 13152(a)(5) and 13200(a)(7)) Creditor Claims: 1 yr. SOL (CCP§366.2) Claimant: Beneficiary, Heirs, Rep (PC § 13006) Slide 14: Affidavit for Collection/Transfer of Personal Property What is Excluded from Gross Value? Decedent's automobile “Floating homes", mobile homes or campers Compensation for services < $5,000 Contractual transfers Assets passing to a surviving spouse or DP Slide 15: Affidavit for Collection/Transfer of Personal Property What Does Claimant Need to Provide? Completed Affidavit, signed and notarized Proof of Identity (Drivers License, Passport) Certified death certificate Inventory and Appraisal (if there is California real property) Institution’s Affidavit, signed and notarized Slide 16: Affidavit for Collection/Transfer of Personal Property What If They Don’t Comply? If property holder fails to comply with a proper affidavit, claimant may file action against the holder to compel payment, delivery or transfer. If the court determines holder acted unreasonably, court “shall” award reasonable attorney fees. [Probate Code §13105(b)] Petition to Set Aside to Surviving Spouse and/or Minor Children : Petition to Set Aside to Surviving Spouse and/or Minor Children Slide 18: What Does It Do? Surviving spouse, domestic partner and/or minor children may seek to set aside up to $20,000 in personal property by filing a petition with the court. Petition to Set Aside to Surviving Spouse and/or Minor Children Slide 19: Petition to Set Aside to Surviving Spouse and/or Minor Children Prerequisites: Waiting Period: None Net Estate Value < $20,000 (all real and personal property owned at DOD - exclusions) May Be Filed by Itself, With Probate Petition or After Creditor Claims: 1 yr. SOL (CCP§366.2) Petitioner: Executor, Surviving Spouse and/or Minor Children Slide 20: Petition to Set Aside to Surviving Spouse and/or Minor Children What is Deducted from Value? Liens, encumbrances Probate homestead Joint tenancy assets, life estate assets Contractual transfers Assets passing to a surviving spouse or DP Retirement benefits Slide 21: What Can Court Order? Court has discretion to determine who among the eligible petitioners shall be granted the set aside and in what amount. The set aside order is conclusive on all persons, whether or not they are now in being. Petition to Set Aside to Surviving Spouse and/or Minor Children Affidavit for Summary Transfer of Small Value Real Property : Affidavit for Summary Transfer of Small Value Real Property Slide 23: Affidavit for Summary Transfer of Small Value Real Property What Does It Do? Claimant may take title to real property by filing an affidavit with the county court clerk where decedent was domiciled at date of death. Certified copy of affidavit should be recorded to perfect marketable title. Slide 24: Prerequisites: Waiting Period: 6 months Gross RP Value < $20,000 (Pertains to real estate only, personal property is irrelevant) No Administration or PR’s consent Creditor Claims: 1 yr. SOL (CCP§366.2) Claimant: Beneficiary, Heirs, Rep Affidavit for Summary Transfer of Small Value Real Property Slide 25: What is Excluded from Gross Value? Joint tenancy assets Life estate assets Assets held in a revocable trust Assets passing to a surviving spouse or DP Affidavit for Summary Transfer of Small Value Real Property Slide 26: What Does Claimant Need to Provide? Completed Affidavit, signed and notarized Proof of Identity (Drivers License, Passport) Certified death certificate Mandatory Inventory and Appraisal Affidavit for Summary Transfer of Small Value Real Property “Regular Estate” : “Regular Estate” Slide 28: Who Can Commence Probate? Any interested person may begin proceedings by filing a petition for (PC §8000): Appointment of a personal representative; and Probate of decedent's will, if decedent had a will. Petition for Formal Probate Administration Slide 29: Where to Commence Probate? If decedent domiciled in California: In county where decedent was domiciled. If decedent was not domiciled in California: (1) In the county where decedent died, if decedent had property located in that county; or (2) Any county where property of decedent is located, if decedent had no property in the county where he or she died. Petition for Formal Probate Administration Slide 30: Type of Petition? Probate of Will and for Letters Testamentary Probate of Will and for Letters of Administration with Will Annexed Letters of Administration Letters of Special Administration Authorization to Administer Under Independent Administration of Estates Act (IAEA) Petition for Formal Probate Administration Slide 31: Obtain a Hearing Date: The clerk will set a hearing date not less than 15 nor more than 30 days after petition is filed. When filing the petition, you may request that the clerk set the hearing date between 30 and 45 days after the date the petition is filed. Petition for Formal Probate Administration Estate Timetable : Estate Timetable Proving the Will : Proving the Will Slide 35: What Does It Mean? A Will is “proved” and will be admitted to probate if it has been prepared and executed correctly under California law by an adult who at the time of signing had testamentary capacity and was not acting under undue influence. Proving the Will Slide 36: Attested Wills (Witnessed) An attested Will is self-proving if the attestation clause signed by the witnesses contains a statement that the witnesses are signing under penalty of perjury. If the will is not self-proving, provide each subscribing witness with Proof of Subscribing Witness (Judicial Council Form DE-131) with a copy of the will and a self-addressed stamped envelope. Proving the Will Slide 37: Holographic Wills (Handwritten) A holographic will may be admitted to probate if the testator's handwriting can be proved by the testimony of at least one witness who was personally acquainted with the testator and has personal knowledge of the testator's handwriting. Send Form DE-135 with a copy of the will attached, and a self-addressed stamped envelope to each person who is familiar with the testator's handwriting. Proving the Will Slide 38: Statutory Will A statutory Will is a form of attested Will that must be signed in front of (at least) two witnesses. It is self-proving because the required declaration under penalty of perjury is included in the printed form. Proving the Will Slide 39: Lost or Destroyed Wills Use Petition for Probate by inserting the word “lost” or “destroyed” before the word “will” at the appropriate place in the title of the form. Request appointment of petitioner as administrator with will annexed. Attach a copy of the original will to the petition. Attach a declaration as Attachment 2 to Proof of Subscribing Witness to prove due execution of the will and its provisions. Proving the Will Challenging the Will : Challenging the Will Slide 41: Who Can Challenge Will? Anyone who has a personal financial stake in the outcome, such as a child or spouse or other heir who was cut out of the will or who believes they are entitled to a larger portion of decedent’s estate. Challenging the Will Slide 42: Reasons to Challenge Will: there is a later Will decedent was not mentally competent fraud, mistake or “undue influence” in execution not properly “executed” forgery for some other reason (such as a pre-existing contract) the Will is invalid. Challenging the Will Slide 43: Thank You! ww.foresightlegal.com/blog www.facebook.com/foresightlegal www.twitter.com/foresightlegal You do not have the permission to view this presentation. In order to view it, please contact the author of the presentation.
Filing an Estate in Probate Court foresight Download Post to : URL : Related Presentations : Share Add to Flag Embed Email Send to Blogs and Networks Add to Channel Uploaded from authorPOINT lite Insert YouTube videos in PowerPont slides with aS Desktop Copy embed code: (To copy code, click on the text box) Embed: URL: Thumbnail: WordPress Embed Customize Embed The presentation is successfully added In Your Favorites. Views: 574 Category: Entertainment License: All Rights Reserved Like it (0) Dislike it (0) Added: June 16, 2010 This Presentation is Public Favorites: 0 Presentation Description No description available. Comments Posting comment... By: sdominguez (10 month(s) ago) I live in Utah. I found some great information at this website regarding probate, http://www.doineedprobate.com, which is very helpful in determining if a probate is needed in order to transfer real property. Saving..... Post Reply Close Saving..... Edit Comment Close Premium member Presentation Transcript TAKING THE FIRST STEP:FILING AN ESTATEIN PROBATE COURTpresented by:Thomas G. Martin, Esq. : TAKING THE FIRST STEP:FILING AN ESTATEIN PROBATE COURTpresented by:Thomas G. Martin, Esq. NBI SeminarIrvine, California June 16, 2010 Thomas G. Martin : Thomas G. Martin CEO/Pres., Foresight Legal Group, P.C. Yale College, B.A. UCLA Law, J.D. Board Member, Estate Planning & Trust Council of Long Beach Advisory Board Member, Miller Children’s Hospital LACBA, Trusts & Estates Section State Bar of Cal., Trusts & Estates Section Disclaimer : Disclaimer This presentation is provided for information and educational purposes only. This presentation does not constitute legal, accounting or other professional advice. Only through a personal, confidential consultation with qualified legal counsel can anyone properly evaluate their own unique probate challenges and determine what, if any, appropriate legal strategies and tactics should be implemented to meet those challenges. IRS Circular 230 Disclaimer : IRS Circular 230 Disclaimer “Nothing in this presentation is intended or written to be used, and cannot be used by any person for the purpose of avoiding tax penalties regarding any transactions or matters addressed herein. You should always seek advice from independent tax advisors regarding the same.” Agenda : Agenda Core Topics: Small Estate – What it is and How to File Regular Estate Estate Timetable – What You Need to Do Proving the Will Challenging the Will “Small Estate” : “Small Estate” What it is and How to File... Think: : Think: Alternatives to Formal Probate Contractual Transfers : Contractual Transfers Slide 9: Contractual Transfers What Do They Do? Contractual transfers allow for the transfer of property outside of the probate process. Slide 10: Examples: Joint tenancy assets Community Property WROS Assets held in trust Joint accounts Pay on Death (POD) accounts Transfer on Death (TOD) Totten Trust accounts Beneficiary Designations Contractual Transfers Affidavit for Collection or Transfer of Personal Property : Affidavit for Collection or Transfer of Personal Property Slide 12: Affidavit for Collection/Transfer of Personal Property What Does It Do? Claimant may take title to personal property (e.g., money, money owed, tangible property such as furniture, artwork, etc.) by simply presenting an affidavit to property holders. Slide 13: Affidavit for Collection/Transfer of Personal Property Prerequisites: Waiting Period: 40 Days Gross Estate Value < $100,000 (all real and personal property owned at DOD - exclusions) No Administration or PR’s consent (PC §§13101(a)(4), 13152(a)(5) and 13200(a)(7)) Creditor Claims: 1 yr. SOL (CCP§366.2) Claimant: Beneficiary, Heirs, Rep (PC § 13006) Slide 14: Affidavit for Collection/Transfer of Personal Property What is Excluded from Gross Value? Decedent's automobile “Floating homes", mobile homes or campers Compensation for services < $5,000 Contractual transfers Assets passing to a surviving spouse or DP Slide 15: Affidavit for Collection/Transfer of Personal Property What Does Claimant Need to Provide? Completed Affidavit, signed and notarized Proof of Identity (Drivers License, Passport) Certified death certificate Inventory and Appraisal (if there is California real property) Institution’s Affidavit, signed and notarized Slide 16: Affidavit for Collection/Transfer of Personal Property What If They Don’t Comply? If property holder fails to comply with a proper affidavit, claimant may file action against the holder to compel payment, delivery or transfer. If the court determines holder acted unreasonably, court “shall” award reasonable attorney fees. [Probate Code §13105(b)] Petition to Set Aside to Surviving Spouse and/or Minor Children : Petition to Set Aside to Surviving Spouse and/or Minor Children Slide 18: What Does It Do? Surviving spouse, domestic partner and/or minor children may seek to set aside up to $20,000 in personal property by filing a petition with the court. Petition to Set Aside to Surviving Spouse and/or Minor Children Slide 19: Petition to Set Aside to Surviving Spouse and/or Minor Children Prerequisites: Waiting Period: None Net Estate Value < $20,000 (all real and personal property owned at DOD - exclusions) May Be Filed by Itself, With Probate Petition or After Creditor Claims: 1 yr. SOL (CCP§366.2) Petitioner: Executor, Surviving Spouse and/or Minor Children Slide 20: Petition to Set Aside to Surviving Spouse and/or Minor Children What is Deducted from Value? Liens, encumbrances Probate homestead Joint tenancy assets, life estate assets Contractual transfers Assets passing to a surviving spouse or DP Retirement benefits Slide 21: What Can Court Order? Court has discretion to determine who among the eligible petitioners shall be granted the set aside and in what amount. The set aside order is conclusive on all persons, whether or not they are now in being. Petition to Set Aside to Surviving Spouse and/or Minor Children Affidavit for Summary Transfer of Small Value Real Property : Affidavit for Summary Transfer of Small Value Real Property Slide 23: Affidavit for Summary Transfer of Small Value Real Property What Does It Do? Claimant may take title to real property by filing an affidavit with the county court clerk where decedent was domiciled at date of death. Certified copy of affidavit should be recorded to perfect marketable title. Slide 24: Prerequisites: Waiting Period: 6 months Gross RP Value < $20,000 (Pertains to real estate only, personal property is irrelevant) No Administration or PR’s consent Creditor Claims: 1 yr. SOL (CCP§366.2) Claimant: Beneficiary, Heirs, Rep Affidavit for Summary Transfer of Small Value Real Property Slide 25: What is Excluded from Gross Value? Joint tenancy assets Life estate assets Assets held in a revocable trust Assets passing to a surviving spouse or DP Affidavit for Summary Transfer of Small Value Real Property Slide 26: What Does Claimant Need to Provide? Completed Affidavit, signed and notarized Proof of Identity (Drivers License, Passport) Certified death certificate Mandatory Inventory and Appraisal Affidavit for Summary Transfer of Small Value Real Property “Regular Estate” : “Regular Estate” Slide 28: Who Can Commence Probate? Any interested person may begin proceedings by filing a petition for (PC §8000): Appointment of a personal representative; and Probate of decedent's will, if decedent had a will. Petition for Formal Probate Administration Slide 29: Where to Commence Probate? If decedent domiciled in California: In county where decedent was domiciled. If decedent was not domiciled in California: (1) In the county where decedent died, if decedent had property located in that county; or (2) Any county where property of decedent is located, if decedent had no property in the county where he or she died. Petition for Formal Probate Administration Slide 30: Type of Petition? Probate of Will and for Letters Testamentary Probate of Will and for Letters of Administration with Will Annexed Letters of Administration Letters of Special Administration Authorization to Administer Under Independent Administration of Estates Act (IAEA) Petition for Formal Probate Administration Slide 31: Obtain a Hearing Date: The clerk will set a hearing date not less than 15 nor more than 30 days after petition is filed. When filing the petition, you may request that the clerk set the hearing date between 30 and 45 days after the date the petition is filed. Petition for Formal Probate Administration Estate Timetable : Estate Timetable Proving the Will : Proving the Will Slide 35: What Does It Mean? A Will is “proved” and will be admitted to probate if it has been prepared and executed correctly under California law by an adult who at the time of signing had testamentary capacity and was not acting under undue influence. Proving the Will Slide 36: Attested Wills (Witnessed) An attested Will is self-proving if the attestation clause signed by the witnesses contains a statement that the witnesses are signing under penalty of perjury. If the will is not self-proving, provide each subscribing witness with Proof of Subscribing Witness (Judicial Council Form DE-131) with a copy of the will and a self-addressed stamped envelope. Proving the Will Slide 37: Holographic Wills (Handwritten) A holographic will may be admitted to probate if the testator's handwriting can be proved by the testimony of at least one witness who was personally acquainted with the testator and has personal knowledge of the testator's handwriting. Send Form DE-135 with a copy of the will attached, and a self-addressed stamped envelope to each person who is familiar with the testator's handwriting. Proving the Will Slide 38: Statutory Will A statutory Will is a form of attested Will that must be signed in front of (at least) two witnesses. It is self-proving because the required declaration under penalty of perjury is included in the printed form. Proving the Will Slide 39: Lost or Destroyed Wills Use Petition for Probate by inserting the word “lost” or “destroyed” before the word “will” at the appropriate place in the title of the form. Request appointment of petitioner as administrator with will annexed. Attach a copy of the original will to the petition. Attach a declaration as Attachment 2 to Proof of Subscribing Witness to prove due execution of the will and its provisions. Proving the Will Challenging the Will : Challenging the Will Slide 41: Who Can Challenge Will? Anyone who has a personal financial stake in the outcome, such as a child or spouse or other heir who was cut out of the will or who believes they are entitled to a larger portion of decedent’s estate. Challenging the Will Slide 42: Reasons to Challenge Will: there is a later Will decedent was not mentally competent fraud, mistake or “undue influence” in execution not properly “executed” forgery for some other reason (such as a pre-existing contract) the Will is invalid. Challenging the Will Slide 43: Thank You! ww.foresightlegal.com/blog www.facebook.com/foresightlegal www.twitter.com/foresightlegal