Sirkin Law Trust Estate Probate Litigation Attorney

What are the Differences in Probate Limited Powers v. Independent Powers in California?

What are the Differences in Probate Limited Powers v. Independent Powers in California?

In California, Limited Powers means that the executor or administrator must obtain court confirmation of a sale/loan/option or exchange of probate real property. On the other hand, an executor with independent powers can sell probate property, but must first give notice of proposed action and obtain consent from the beneficiaries or heirs, or there must not be an objection to the action after a reasonable time.  

The four types of transactions that require court approval when there is only limited powers are:

 

(1) Sale of real property.

(2) Exchange of real property.

(3) Grant of an option to purchase real property.

(4) Borrowing money with the loan secured by an encumbrance upon real property.

The most important part of a sale of probate property is that it must first be appraised, and it cannot sell for less than 90% of the appraised value.   The 90% rule can only be modified by a court order.

Mina N. Sirkin is a probate lawyer in Los Angeles, Ca, Certified by the Board of Legal Specializations as a Probate Lawyer Specialist.   Ms. Sirkin is an expert in California Probate, LosAngelesProbateLawyer.  To learn more about our probate services, contact us at 818.340.4479 or by email at: [email protected].

Call us at 818.340.4479 to find out more about the Differences in Probate Limited Powers v. Independent Powers in California.

Mina N. Sirkin, Estate

& Wealth Planning 

Attorney Los Angeles

Woodland Hills

How to gather probate estate assets, inventory and appraise them

How to gather probate estate assets, inventory and appraise them

Executors and administrators in California have to gather, marshal, inventory and appraise the probate estate assets as soon as they are appointed.  

What does marshaling mean? It technically means taking possession of the asset in the name of the estate.   For example, decedent's bank accounts have to be changed to the name of the named estate, as follows: Johnny Executor Doe, Executor of the Estate of Jim Decedent Doe.

California Probate law requires that within 120 days after the issuance of Letters (authority to act), that the executor must take possession and inventory the assets. The inventory is then filed with the court using a form, and before it is filed, the court’s appraiser, called a probate referee, must appraise them.   Estate Bank accounts are appraised by the executor, but most other assets are appraised by the referee.   Assets such as stock certificates, bonds, and real estate all must be appraised as of the date of death.   Failing to do this timely can result in removal of the executor or administrator.

What Items to take to the Bank to collect a Decedent's bank accounts, and to open an estate bank account?

Most banks will ask executors and administrators to bring with them several items:  1) Certified Court Letters; 2) Certified Probate Order; 3) A Certified Death Certificate of the Decedent; and 4) An EIN Tax number for the estate.  If you miss taking even one of the items above, the bank may not assist you, so it is best to spend the time to have all of those items with you when you go to the bank. We can assist executors and administrators in obtaining the right papers for banks.

Mina N. Sirkin is a Probate Attorney serving Los Angeles, who is licensed to practice law in California since 1992.  Ms. Sirkin is Board Certified as a specialist in probate in California.   You can reach us by Email at:  [email protected] or by Telephone at 818.340.4479.

When can you start to act as a probate executor?

When can you start to act as a a probate executor?  Your ability to act starts when the Court issues a document called Letters Testamentary or Letters of Administration.

Mina Sirkin, Los Angeles Probate attorney advises that a person who is named in a will as an executor cannot start to act as an executor until the court issues him/her Letters of Administration or Letters Testamentary.

Lets say you want to list a probate property for sale.   First, a Petition for Probate has filed, and after a hearing, it is to be granted by the court. Then, an order for probate has to be issued, and only after that, the Letters of Administration or Letters Testamentary have to issue.   In cases where there is no will, a bond has to be posted before Letters of Administration can issue.

You can make many mistakes if you act untimely, that is too early or too late.   If you try to sell a piece of property before you have Letters, escrow will not close until such time as the escrow and title officers have checked your Letters, which is your authority to act.

You cannot collect or marshal the assets of the decedent in probate, until you have Letters in your hand.   Banks will not hand over assets to you until they are satisfied that your Certified Letters from the court are given to them.

With proper legal advice in probate, you can avoid making costly mistakes.  To obtain legal representation in a probate matter in Los Angeles, contact our probate attorney in Los Angeles and San Fernando Valley at 818.340.4479.  Email: [email protected].

Do you Have Questions About Wills Trusts & Probate in Los Angeles? San Fernando Valley

Frequently Asked Questions about Wills, Trusts & Probate

• By: Mina N. Sirkin
• Certified Specialist Estate Planning Lawyer Los Angeles
• Sirkin Law Group, P.C.
• 21550 Oxnard St. #300
• Woodland Hills, CA 91367
• 818-340-4479
• Email: [email protected]
• http://LosAngelesProbateLawyer.com

What happens if you die without a will?

• In California, if you die without a will, you are said to have died intestate.
• California has a set of default rules for who gets the estate if there is no will.
• Generally, as to community property, the surviving spouse gets 100% of the community property if there is no will in California.
• As to separate property, the children and spouse share it depending on whether there are any children, and the number of children.

The Default Estate- No will

Community Property: 100% to Spouse, or  Registered Domestic Partner, if any.

Separate Property:

If there are no children, the spouse (Domestic Partner) gets it.

If there are children, ½ to spouse, and ½ if only one child. If more than one child, then 1/3 to spouse and 2/3 split among the children.

What is the Cost of Probate Administration in Los Angeles

• Generally, there are several categories of fees and costs.
• Statutory Fees and for Personal Representative and for the Attorney for the Personal Representative
• Extra-ordinary Fees for Personal Representative and his/her lawyer.
• Bond (if not waived)
• Filing Fees for Petitions
• Probate Referee’s Appraisal Fees
• Miscellaneous Costs of Letters and Certified Orders
• Translation of California Statutory Fees

Estate Size            Statutory Fees for Each Personal

                                  Representative and his/her attorney

$100,000              $4,000

$200,000              $7,000 

$500,000             $13,000

$800,000            $19,000

$1,000,000        $23,000

$2,000,000       $33,000 

$3,000,000      $43,000

How long does it take to close a probate estate in Los Angeles?

• A nice probate without any litigation in Los Angeles can take about a year.
• Most cases take somewhere between 1-2 years to complete.
• Complications can happen when there are undiscovered assets or assets which have escheated to the State of California or other states.
• What if there is not enough money to pay cash gifts in a will?
• Cash gifts usually get paid first before the residue.
• If there is no residue, and the cash gifts exceed the size of the estate, the cash gifts get reduced (called abated.

What happens if the deceased left more than one will?

• If the decedent left more than one will, generally, there is a presumption that the last one governs, unless:
• You can show there was fraud, duress, mistake, undue influence, or lack of capacity at the time of execution of the will.
• In that case, there will be a will contest and the court will set the case for a trial as to which will is valid.

What are the best ways to prevent
gold diggers from getting to your trust assets?

• Preventing undue influence can be effectuated by:
• Naming a Professional Fiduciary as Successor Trustee
• Setting up an automatic change in the trustee to a professional, once trustor reaches a particular age
• Creating an Exclusive Method of Revocation for the Trust.
• Creating an Exclusive Method of withdrawal and transfer of property from the Trust.

About Mina Sirkin, Los Angeles Probate Lawyer

• Mina N. Sirkin has been practicing probate law in Los Angeles County since 1992.
• Ms. Sirkin is a Board Certified Specialist in Probate, Estate Planning, and Trust Law in California.
• Frequent Media Expert on Estate and Conservatorship Cases in Los Angeles
• Appeared on CNN, CNBC, Inside Edition, RollingStone.com, KCET, NPR News

Probate Attorney Los Angeles | Sirkin Law Group Probate | Los Angeles County, Glendale, Woodland Hills

Probate Attorney Los Angeles | Sirkin Law Group Probate | Call 818.340.447

Some of you may wonder what the probate process is like in Los Angeles from an attorney's perspective.  

"The most important fact to know about probate is that Probate is a protective proceeding."

1.   The process insures that the court supervises the actions of an executor or administrator.  

2.  The Court overlooks the admission of wills and allows a forum for people to question authenticity of any will or codicil.  Sometimes, a will or codicil cannot be admitted, if it was the result of undue influence, fraud or lack of capacity of the decedent.   The probate process allows for relatives to voice their concerns and objections to a will or codicil via a will contest.

3.   It insures that creditors' rights are protected, via a bond.

4.   Probate provides a method of transfer of title to property of a decedent.

5.  It includes a timeline for an accounting for the executor or administrator, and a time for distribution of the assets of the estate.

How do you file probate in Los Angeles?

The process in Los Angeles begins with a Petition for Probate filed with the Central Court (Downtown). The petition requires that a notice be published in the local newspaper where the decedent resided.   The reason for the publication and notice requirements is to make sure that any relatives find out about the probate filing, have an opportunity to object, and that creditors can come forward to collect any money due them by the decedent.

Unless there is a will that waives bond, or the court at its discretion waives the bond, the Court requires that an administrator/ executor post a bond. Sometimes, administrators cannot get bonded due to bad creditor, or prior bankruptcies or other reasons.    If a bond is ordered but it it is not posted, the executor/ administrator cannot get appointed unless an alternative method is used.  Bond waivers are getting more rare in Los Angeles and require a personal appearance to request one.

The alternative to a bond is a blocked account, or appointment of another person, such as a private professional fiduciary, or a trust company as administrator.

What if you can't agree to an issue in probate?

While there are many times where there are disputes regarding actions of an executor or administrator, there are great opportunities for settlement of cases in probate via mediation.    The least expensive way of settling a probate dispute is by mediation.

Why hire us?

Mina Sirkin is a nationally recognized probate attorney and has served as a media expert to CNN, MSNBC, Inside Edition, NPR and KTLA regarding probate and estate matters.  She is Certified as a Specialist by the Board of Legal Specialization of the State Bar of California, in Probate, Estate Planning and Trust Law.   Mina Sirkin is rated 10/10 on Avvo.  Sirkin Law Group's Probate Offices are located in Los Angeles, Woodland Hills, Glendale and Pasadena. Probate Attorney Los Angeles  

Call: 818.340.4479. Los Angeles Probate Lawyer