My partner of the past ten years passed away recently. He did not have a will. His only assets were a mobile home worth about $80,000 and $42,000 in a money market account. He has three grown sons with whom he had not been on speaking terms for the past four years. Although we did not live together, my name is on the title of the mobile home as a joint tenant.
His sons have become hostile toward me. Is there any way they would have rights to any proceeds I might receive from the sale of the mobile home? Also, I have paid for all of my partner's burial costs with my personal credit cards. Do I have a legal right to be compensated by his evil sons? I was just planning on absorbing the cost, but since they are causing me so much grief, I would like to make them pay if they are legally bound.
Suzanne
Dear Suzanne,
You should not have to worry much about the mobile home. It's yours as the surviving joint tenant. All you need to retitle the mobile home in your name is a death certificate and California Department of Housing paperwork that you can hire a title company to prepare for you. It will not be very expensive.
Your partner's sons could try to sue you for the mobile home. They could claim that their father lacked mental capacity when he put it into joint tenancy with you, or they could claim that he was the victim of your undue influence. It is not likely that his capacity will be in question, especially if he added you to the title of the mobile home years ago.
An undue influence claim can be made if you procured the documents adding your name to the home and your partner held you in a position of trust and confidence. If this is the case, then the burden of proof may be on you to show that your partner gave you his home of his own free will and not as the result of your manipulation.
Realistically, his sons probably do not have a good case, and there's not enough money involved to get most trusts and estates lawyers excited enough to offer to take the case on a contingency fee. This means the sons will have to sue you on their own nickel, and they are not likely to do that.
Finally, the sons could be made to pay your partner's funeral and burial expenses if they are inheriting the money market account through their father's estate. The estate is subject to the creditors claims and the costs of funeral and burial expenses. However, if they are willing to grudgingly accept your ownership of the mobile home, it's probably better to follow your initial instincts and let them keep the money.
Len & Rosie
Dear Len & Rosie,
My mother died recently. Her home and personal possessions are in a trust to be divided equally among her four children. My three brothers are giving me their shares of the house. I e-mailed
the County Recorder and was told, "The Clerk Recorder's office is prohibited by law from giving legal advice and including the type of forms to use. It is best to consult an attorney and or a title company as any change to title to real property may have legal and tax consequences."
Are there tax consequences? If we carry through on this, how do we do it?
Nancy?
Dear Nancy,
We're not surprised that the County Recorder has a canned e-mail response to people asking legal questions. Only attorneys licensed by the California State Bar Association are allowed to provide legal advice. If the County Recorder's office was permitted to give you advice on how to prepare the deeds necessary to administer your mother's trust, it would be exposed to liability for any mistakes you make while trying to do it yourself.
What you should do is to review your mother's trust with a trust and estates attorney. The reason you should do this is because you may be able to avoid some of the consequences of your brothers gifting to you their interests in the home.
For example, if your brothers can execute disclaimers of their interest in the home, they will be treated as having died before your mother for purposes of distribution. If you are the beneficiary who inherits the home if your brothers had died first, then you can take advantage of the Proposition 58 Parent-to-Child reassessment exclusion and avoid having to make more property tax than your mother did while she was alive.
However, if the trust distributes the home to all four children, and they turn around and give it to you, then three-quarters of the home will be subject to a property tax reassessment under Proposition 13, and your property taxes will skyrocket.
Also, if your brothers cannot disclaim their shares of the home, they will be making a gift to you that will have to be reported on a gift tax return (IRS Form 709) when they file their income taxes next year. If any of them own more than $1,500,000 in assets, this gift could have an effect on their estate taxes after they die.
Your brothers are being very generous to you, and for that you should be thankful. What you need to do now is to get some professional advice to make sure that your brothers' generosity will have the least impact on your taxes, and theirs.
Len & Rosie
Dear Len & Rosie,
Late last year my father passed away. Unfortunately he didn't have a will, or any assets other than two life insurance policies. My sister and I have been asked by the life insurance company to provide them with a certified copy of our father's death certificate. We are concerned that by doing this we will open ourselves up to financial liability for his outstanding debts, which is greater than what the life insurance policies will pay.
Fred
Dear Fred,
There are two principles you should understand about the debts of a decedent. First, family members are not normally liable for any of the debts of a deceased loved one. Second, most, but not all, of a decedent's assets are subject to the claims of his or her creditors.
Normally, only your father's probate estate and any assets he may have owned in a revocable trust are subject to creditor claims. You do not have to pay off your father's credit cards with his life insurance money, unless the insurance policies pay into his estate. If you and your sister are the named beneficiaries on your father's insurance, or if you get it by default under the terms of the policies, then the money is yours to do with as you please.
It begins to get complicated if the insurance pays into your father's estate. If the estate is worth less than $100,000, you and your sister can collect the estate assets using small estate declarations under section 13101 of the California Probate Code. The problem is that if you do this, you will become personally liable for your father's debts, even if they exceed the value of the estate. For this reason, it is sometimes a good idea to probate an insolvent estate even when it is not necessary, just for the creditor claims protections available in probate.
If there is more than $100,000 in the estate, you do not have a choice and will have to file for probate. Your father's creditors can be paid, but only after the probate executor and lawyer fees are paid off the top, as well as the costs of your father's funeral and burial. It may also be possible to obtain a court order paying a family allowance to you and your sister during the probate. This would serve to get more of your father's assets away from his creditors.
It is very important to be cautious when dealing with an insolvent estate to avoid making a mistake that could cost you more money than you will inherit. Sometimes, it's more important to have the advice of a trust and estates attorney when dealing with a small estate than with a large one.
Len & Rosie
Dear Len & Rosie,
My mother was widowed last July and is names as executor in my father's will. They owned together a community property account with a brokerage firm, which requires a certified court appointment indicating my mother's authority to act on behalf of the estate. This plus other documents will split the account into her account and an estate account which can then be transferred back to her account. This seems like a lot of work to simply remove a name on an account.
Sandy
Dear Sandy,
The reason why it's not so easy to remove your father's name from the brokerage account lies in the manner in which the account was titled. Assets titled in community property do not automatically pass to the surviving spouse like assets titled in joint tenancy or as "community property with right of survivorship". Your father's half of this account belongs to his probate estate and must pass under the terms of his will.
There are three means of getting your father's name off of the account. If the value of the account, combined with everything else your father owned in his name alone upon his death, is less than $100,000, then your mother, or the persons named in your father's will if he didn't leave the estate to your mother, can collect the account with a small estate declaration under California Probate Code section 13101. Going to court won't be necessary.
If your father's estate is worth more than $100,000 and he left everything to your mother in his will, then your mother can petition the court for a Spousal Property Order. This will require a trip to court, but a spousal property order is easier, cheaper, and faster than going through probate. She could get the account in her name as quickly as a month after her first visit to the lawyer.
If your father's will left his estate to someone other than your mother, and the estate is worth more than $100,000, then your mother, as the executor named in the will, should petition the court to probate her husband's estate. She will have access to the money once she is appointed as executor and is granted "Letters Testamentary" by the judge, but she won't be able to distribute the account to your father's heirs until probate is closed, which frequently takes 9-15 months after the probate petition to administer the estate is filed with the court.
Your parents could have avoided the difficulties your mother is having today by getting the proper legal advice. They could have created a revocable trust that would avoid having to go to court on the second death as well as the first, or they could have simply titled their accounts as joint tenants or as community property with right of survivorship. When your mother meets with a trusts and estates attorney to clean up this mess, she should also take the time to create an estate plan to save her children time and money after her death.
Len & Rosie
Dear Len & Rosie,
My mother and I have her home in both our names as joint tenants with right of survivorship. My mother died recently at age 92. I am her only child and heir. I am not clear on the paperwork required to change the deed to the house.
Marianne
Dear Marianne,
Lucky for you, this isn't going to be very complicated. There are really only three things that you need to do. First, you need to remove your mother's name from the title to the home with an Affidavit of Death of Joint Tenant that you must record along with your mother's death certificate with the County Recorder in the county where the home is located. You also need to submit property tax forms with the affidavit of death to claim the parent-to-child transfer reassessment exclusion to prevent your home from being reassessed under Proposition 13. A trusts and estates lawyer or a title company can prepare the documents you need.
Unless you intend to sell your mother's home in the near future, you should have the home appraised by a certified appraiser or a California Probate Referees (the appraisers used by the courts in probate). The home should have a new cost basis equal to its value on the date of your mother's death. You need an accurate appraisal to establish this value so your tax preparer can determine the proper amount of capital gains tax due if you ever sell the home.
Finally, you should look to your own estate plan. Joint tenancy worked out well for you and your mother, but it's not always the best thing to do. If your mother had wanted to disinherit you and leave her home to someone else, she wouldn't have been able to do so unless you were willing to sign a deed returning the home to her. You should not surrender your control over your own assets just to save a few bucks on a revocable trust or probate unless you know that you would never, ever, change your mind. You should meet with a trusts and estates attorney to have your mother's name removed from the home and to create a new estate plan that will accomplish your goals.
Len & Rosie
Dear Len & Rosie,
When my mom passed away most of her financial accounts were set up with my brother, sister, and myself as beneficiary. She had two accounts that are worth less than $70,000 together that did not have beneficiaries. She also owns real property that I believe is worth less that $20,000. The financial institutions for those two accounts are saying that I as the will's executor must be appointed by the court in order in order to receive the money.
Judi
Dear Judi,
If the total value of your mother's assets titled solely in her name is worth more than $100,000, then you have no choice and must probate your mother's estate. But you may be able to avoid probate altogether. Under California law, if the gross value of your mother's estate is less than $100,000, then her assets can be collected by means of small estate declarations. If your mother's real property is in fact worth less than $20,000 and her remaining accounts are less than $70,000, then the total is less than $100,000 and you do not have to probate your mother's estate.
With no probate, there is no executor, so your mother's assets have to be collected by you and your siblings together, unless they give you a power of attorney allowing you to act on their behalf. For your mother's bank accounts, you will need to deliver to the bank a death certificate and a small estate declaration made under California Probate Code section 13101. You will probably need a lawyer to prepare this declaration, but some banks have their own forms for this so check with your mother's banks first.
You have to follow a difference procedure to transfer your mother's real property. You must start by having the property appraised by a California Probate Referee. If its value is $20,000 or less, then you and your siblings can file the appraisal together with a form declaration with the court. After the court clerk signs the declaration, your next step would be to file a certified copy of the declaration with the county recorder to complete the transfer the property.
If the California Probate Referee says that your mother's real property is worth more than $20,000 but her total estate is still less than $100,000, you can still avoid probate, but you must petition the court for an order transferring the land to you and your siblings. However, despite having to go to court, this process is a lot cheaper and easier than a full probate. You should start this process by meeting with a trusts and estates attorney.
Len & Rosie
Dear Len & Rosie,
My father passed away a year ago and his estate was fully protected by a living trust. All went well with that (Thank you!). The problem is that my uncle died without a will in New York a month before my father's death. His estate is being probated. Because my father was the only living relative at the time he inherits the entire estate. My uncle's estate should now pass to my father's heirs, which would be my mother.
My problem is that the New York court requires some document from California identifying the legal executor of my fathers estate. Since there was no probate for my father's estate, how can I get a legal document that states my mother is the executor and entitled to distribution of my uncle's assets?
Gary
Dear Gary,
Everything your father owned upon his death outside of the trust and not in joint tenancy and without a pay-on-death beneficiary is part of your father's probate estate and is subject to probate. This includes your father's interest as an heir to his brother's New York estate. Your uncle's estate must first pass through probate under New York law into your father's estate. Then, your uncle's assets must be distributed from your father's estate in California to the heirs named within your father's will.
Because your father created a trust with your mother, he probably signed a "pour-over" will leaving his entire estate to the trust. Depending on how much your uncle's estate is worth, your mother, likely the sole trustee of the trust, may have to file for the probate of your father's estate in California.
Probate estates in California that are worth less than $100,000 do not have to go though probate. If your uncle's New York estate is worth less than $100,000, then your mother can collect the estate with a Small Estate Declaration under California Probate Code section 13101 delivered to the executor in New York.
If your uncle's estate is worth more than $100,000, then you mother has two remaining alternatives. If your parents' trust is completely revocable by your mother, she could file a Spousal Property Petition with the court in California and get a court order declaring that your father's interest in the New York estate now belongs to her. A certified copy of the court's order is all she'll need to collect the money from the New York estate.
If your parents' trust is partially irrevocable, which would be the case if it is an A/B trust your parents created to avoid federal estate tax, then your mother is not the ultimate beneficiary of your father's estate and her only remaining alternative is to file for probate in California. Once she gets appointed as executor by the court, she will receive the "Letters Testamentary" that she can deliver to your uncle's executor in New York. However, she will still have to complete the entire probate process in California before she can receive the money.
Len & Rosie
Dear Len & Rosie,
My mother recently died and I am her only heir. She died without a will. All of her liquid assets were left to me in pay-on-death accounts. Her estate consists of only her condo. She has no debts, not even a credit card bill. How long will it take to go through probate. I want to avoid paying the lawyer a percentage of what the property is worth. I do not plan on selling her home. Can I keep the legal costs down by just paying the lawyer by the hour?
Chris
Dear Chris,
You should inherit your mother's entire estate. If you are your mother's only surviving child and she was not survived by a spouse or by descendents of an already deceased child, you are your mother's sole intestate heir and you will inherit everything. But you have to probate your mother's estate because she did not create a trust.
On average, a typical probate will take anywhere from nine to fifteen months to complete. While it's possible to complete a probate in six or seven months, that rarely happens, if only because it's not always easy to get a court hearing date when you want.
Probate lawyer fees are set by state law and are based on a percentage of the gross value of the decedent's estate. If your mother's home is worth $500,000, the statutory lawyer fee would come to $13,000. The personal representative (executor or administrator) appointed by the court gets the same fee, but since you'll be the personal representative, there's no point in you taking an administrator's fee and paying income tax on part of your inheritance.
You can negotiate fees with your lawyer and maybe get him or her to do the probate for less than the statutory fee. Good luck in finding a lawyer willing to do this. Probate fees are a goldmine for lawyers. Estate attorneys look at doing a probate for less than the statutory fee as working for less than minimum wage.
If you are not in a hurry to sell your mother's home or borrow against its equity, you may want to try doing the probate yourself. It won't matter so much how long it takes, so you will have time to make a few mistakes. And you can always hire a lawyer if you mess things up. There are some good self-help probate books out there, such as How to Probate an Estate in California, by Julia Nissley, available from Nolo Press.
Len & Rosie
Dear Len & Rosie,
My sister passed away a few weeks ago. She was 38 and had no will. She owned only a 2001 VW Bug and $7,000 in her bank account. She was in the hospital for two months before she died. Fortunately she had medical insurance. I would like buy her car or my Mom wants to gift it to me. How do we go about it? Also, can the hospital come after my sister's car for outstanding debt since it was the only asset she owned?
Lisa
Dear Lisa,
If your sister had no children or spouse, your mother and father (if he's alive) are the heirs of her estate by intestate succession, the law about who gets what when someone dies without will.
Your parents can collect the bank account forty days or more after your sister's date of death with a death certificate and a small estate declaration under California Probate Code section 13101. Many banks have their own forms for this, so they may not even need a lawyer.
The car can also be transferred to your parents, or to you if they want you to have it, forty days or more after the date of death using DMV form REG-5, available at your local DMV office or on the internet at www.dmv.ca.gov. There should be no probate, because the total value of your sister's estate is less than $100,000.
There is a downside. If your parents collect the car and account using these small estate forms, they will become personally liable for your sister's debts, even if those debts exceed the value of her estate. So, it's important to find out how much money your sister owes in medical bills and other debts. Hopefully, it's less than the $7,000 in your sister's bank account, allowing your parents to sell or give you the car without putting themselves at risk.
If your sister owes more than what her estate is worth, your parents should see an attorney. In a probate, the claims of your sister's creditors are limited to only what your sister actually owned on her death.
Len & Rosie
Dear Len & Rosie,
I inherited my mother's home with my two brothers in equal shares. The home is vacant. Am I allowed to move into the home? Do I have to pay rent? Can the home be sold against my wishes by the executor? The will says that the executor can sell the home.
Robert
Dear Robert,
Whether or not you have the right to live in your mother's home depends on whether or not the probate of her estate is complete. Right now the home is still part of your mother's probate estate. You do not yet hold title to it, so for now you do not have the legal right to reside in the home, unless the executor of your mother's estate is willing to let you stay there.
The bad news is that your mother's executor can sell her home. If the executor was granted "full authority" by the court, then he or she can even sell your mother's home without a court order. The only heads up you'll get is a "notice of proposed action" in your mailbox. If you wish to object to the sale, you'll have to hire a lawyer and file an objection in court. If the executor was not granted full authority, then he or she can still sell your mother's home, but there will have to be a court hearing to approve the sale.
You can object to the sale if the executor tries to sell the home for less than what it's worth, but you probably cannot stop the home from being sold unless you and both of your brothers agree to keep the home and the home doesn't otherwise have to be sold to pay off the debts and expenses of your mother's estate.
Even if you and your two brothers wind up inheriting the home outright, it's not likely that all three of you are going to be able to live in the home. Your brothers won't want their inheritance tied up because you're living in the home, even if you agree to pay all of the expenses of the home. If somehow the three of you own the home together when the probate is over, they can sue you in an action for partition to force a sale of the property if they want to cash out and you don't.
What you need to do is to try to work out a deal with your brothers. Maybe they will agree to own the home with you instead of selling it. But if you and your brothers cannot come to an agreement, you need to see the writing on the wall and accept the fact that you are not going to be able to live in your mother's home.
Len & Rosie
Dear Len & Rosie,
My step-grandfather passed away recently without a will. My grandmother is also deceased, and it turns out he has no blood relatives that we know of. The next closest relatives are my father, my sister, and me. The problem is that
