How to deal with a sibling that wont move out in probate?

Hey friends, Joe here and today's post is a good one. Today's post about probate will speak to people who have that brother or sister who never moved out of mom and dads house a long time ago. Can you relate?

Dealing with probate in California, by and large, is a daunting task. Having to deal with family members who won't talk or refuse to cooperate only adds to the madness. I will give you solid tips and real-life advice that will minimize risk and fast track any delay tactics by your rouge family member.

1) First things first get appointed as the administrator of the estate. Don't bother ruffling any feathers until you have some powers over the Estate. Once appointed call or text your family member to let them know that you've been appointed and that you plan on selling the home. This probably won't come as a surprise to your family member depending on when your loved one passed away. If the death of your loved one was recent, they are probably expecting it. If your loved one passed away many years ago it may be a bit of a shock.  Let them know that the realtor will be reaching out to them to go see the home. This will definitely put them on notice and if they are going to fight you, now is when they will voice their opinion giving you time to prepare for the next step.  

2) Have the realtor make contact with them and schedule a time to view the home to confirm the price, take pics etc.

3) Have them served with a 60-day notice to move out. Be prepared for a frantic phone call from them. Inform them that this is coming from the probate attorney representing the estate and not you! In reality, this is a move to protect the other beneficiaries in case you need to file an unlawful detainer in the event the person living in the home stops talking with you as the administrator.  In California, before you can file an "unlawful detainer" you must give a 60 or 90 day notice to move out. Please call a landlord-tenant attorney for your specific case to help you with preparing and serving the notices.  Do not be cheap and try to do this yourself, if you mess up it can cost you time and money.

4) Be prepared to have a heart to heart talk with your sibling. In the event that your sibling cooperates in the beginning and then stops talking with you or cooperating, you may need to do something radically different. I recommend that before you proceed with an eviction try to be civil and offer a second chance. You will have to be the bigger person and dig deep. I recommend calling the person and saying "I'm Sorry". You're probably asking: "why am I saying sorry? I didn't do anything wrong". The person you're dealing with may be upset with you for a number of reasons. It could be something recent or something from many years ago. Maybe you have an idea maybe you don't. In any case, the best thing to say is "Hey _(name)_ I'm sorry for the way things got off and sorry for anything I've done or said to you in the past. I still plan on selling the home and I'd like to do it with your cooperation and not through an eviction.  Will you please move forward with us?".  Then be quiet and listen to them. This apology may be the only thing that they wanted in the beginning. If you feel they will not work with you or if they flat out say "No" then, unfortunately, you will have to evict them. Evicting someone can have a major impact on them finding a place to live in the future. At least you know that you went the extra mile to avoid this.

5) Your last step is to contact a landlord-tenant attorney and explain the situation and make sure to mention this is a probate case.  If you used a lawyer for the 60-day notice then you will already have someone to help you with the unlawful detainer.

Wow, this was longer than I thought. I hope this helps and remember there are many options to probate in California besides selling the home. Such as a sibling qualifying for a loan to buy out the others. Feel free to call or text us at (949) 485-9427 to answer all of your questions or for an attorney referral.

Disclaimer: We are not lawyers and this is not meant to be legal advice. Please call a lawyer in your state for your specific situation.

How to Administer a California Living Trust

Many Californians have living trusts. The maker of the living trust is called the Trustee (usually parents, uncles, aunts, grandparents, etc). As long as the Trustees are alive, they are in-charge of their trusts. A living trust will usually appoint a successor trustee who will execute the trust in accordance with the trust’s terms when the trustee passes away. These successor trustees are normally the daughters, sons, brothers, sister, etc. A living trust avoids probate. However, there are many steps that must be done to ensure proper execution of the trust, to carry out the Trustee’s wishes, and be in compliance with the California Probate Code. This process is known as trust administration. If you were named as the successor trustee of a living trust and were expected to act as the successor trustee tomorrow, would you know what to do without getting yourself into trouble? This article will summarize the trust administration process, and help you avoid pitfalls along the way.

How to Begin a Trust Administration

California Probate Code Section 16061.7 requires that a formal notice be sent to the beneficiaries within 60 days of the date of death of the trustee. This notice is very important because by sending out the notice to the beneficiaries, the successor trustee can shorten any trust litigation from the beneficiaries from four years to a mere 120 days. This is a very powerful armory for successor trustees to isolate themselves of liabilities from the trust’s beneficiaries. In addition, if a Pourover Will exists, you MUST “lodge” it with the within 60 days of the date of death of the trustee.  

Dealing with Real Property

One of the largest assets in a living trust is a house. The successor trustee must follow certain steps in order to vest title in the successor trustee so that the house can be sold and managed. An Affidavit of Death of Trustee along with a certified trustee’s death certificate must be recorded with the county assessor’s office. Because death constitutes a change of ownership, a Preliminary Change of Ownership must be filed with the county assessor’s office within 150 days of the trustee’s death. If the living trust is giving the house to the children or grandchildren then the appropriate exemption form must be filed to retain the old property tax basis in order to save the children/grandchildren thousands of property taxes annually. Unbeknownst to many Propositions 58 and 193 allow the children or grandchildren to retain the old property tax basis. We love this proposition and think its very cool.

Collecting Other Assets & Appraisal

The successor trustee will want to get a tax identification number from the IRS for the trust. It is crucial that all cash and investment accounts be placed in an account under the trust’s tax identification number so that the successor trustee is not personally liable for the income tax. There may be situations where the successor trustee discovers that certain assets were accidentally not placed in the trust; the successor trustee would petition the court to confirm that such assets be placed into the trust so that the successor trustee can administer all the trust’s assets accordingly. After all assets have been identified then the successor trustee might want to get appraisals for the trust assets.

Paying Debts & Taxes

It is the successor trustee’s responsibilities to pay all valid debts and taxes. It is critical that the successor trustee understands California Code of Civil Procedures 366.2. This California law sets a strict 1-year statute of limitation on all unsecured creditors’ claims against the deceased. Therefore, if mom died more than 1 year ago with credit card debts of $100,000 and left a $500,000 home with no mortgage against it, 366.2 says the successor trustee does not have to pay for the $100,000 credit card debts even though there is a house free and clear left by mom if more than 1 year has lapsed since the date of death.  This civil code can save the Estate or Trust a lot of money. 

If the total estate value is more than $5.4 million then an estate tax will be imposed and the successor trustee would need to file Form 706, which is due within 9 months of the date of death. This is in addition to the income tax return form 1040 for the deceased year of death and form 1041 for income earned by the trust. Because a successor trustee may be held personally liable for the estate’s debts and taxes, it is advisable for him or her to seek professional help in this area of trust administration. Some say that being a successor trustee is a thankless job for this reason because quite often the distribution among the siblings are equal shares but yet the one sibling who is the successor trustee has a fiduciary duty to the other siblings and thus, bears the responsibilities of carrying out the terms of the trust in accordance with the California Probate Codes and the California Uniform Prudent Investor Act.

Accounting and Distribution

After all of the trust assets have been dealt with, taxes are paid, and all debts are paid, an accounting of all the trust’s money has been rendered then the successor trustee will be in a position to distribute the money to the beneficiaries. Successor trustee will need to be mindful of sub-trusts because it is common that the trust dictates certain assets be held in a sub-trust for minors or for other persons. In that case, the successor trustee will need to fund or put assets into that sub-trust.

It is important that the successor trustee understands the trust administration process because the California Probate Codes requires that the successor trustee follow these rules. If you are not familiar with the trust administration process you can get advice from a probate attorney.
 

As always we hope you have received some value for this information.  If you or a friend has a loved one that has passed away or would like to talk to an Estate Planning Lawyer or Probate Attorney in CA call us at (949) 485-9427. We work with the best Estate Planning Attorneys in California.

DISCLOSURE: THE OROZCO GROUP IS NOT A LAW FIRM AND IN NO WAY IS THIS POST MEANT TO BE LEGAL ADVICE. DO NOT RELY ON IT AS SUCH AND PLEASE DIRECT YOUR LEGAL QUESTIONS TO AN ATTORNEY. 

Errors made by Probate Attorneys in California

On August 13, 2017 I had the pleasure of meeting a client who may need to go through probate in Los Angeles county.  This story is one I've heard before many times. In Margarets own words "I can't believe we might have to go through probate, all because the trust that we paid an attorney to draft was incorrectly prepared". What Margaret is referring to unfortunately happens a lot. Years ago her parents paid an Estate Planning Attorney in Los Angeles to draft the family living trust in order to avoid probate.  In Maragarets case the Estate Planning Lawyer forgot to record the grant deed and had other vital documents missing from the trust.

Many times, believe it or not the probate lawyer or probate attorney will forget to record the grant deed with the county showing the home going into the trust. Another common problem children of the deceased encounter is missing or incomplete trusts. There are several documents which we will go over shortly, that make a may make a trust complete.  Many times the children think "Oh, thats all taken care of, my parents created a trust many years ago. I'm sure everything is there".  

After talking with hundreds of clients and Estate Planning Attorneys we have heard that these documents make for a solid Family Trust. The documents are:

1.  The Trust
2.  Durable Power Of Attorney
3.  Advanced Healthcare Directive
4.  Pour over will
5.  Trust Transfer Deed (recorded)

If you or a friend has a loved one that has passed away or would like to talk to an Estate Planning Lawyer or Probate Attorney in CA call us at (949) 485-9427. We work with the best Estate Planning Attorneys in California.

DISCLOSURE: THE OROZCO GROUP IS NOT A LAW FIRM AND IN NO WAY IS THIS POST MEANT TO BE LEGAL ADVICE. DO NOT RELY ON IT AS SUCH AND PLEASE DIRECT YOUR LEGAL QUESTIONS TO AN ATTORNEY. 

How to pick a realtor for probate in california

Most people pick a realtor because they grew up with them as friends or they were nice to their loved one. With all due respect, this is not the way to pick a realtor when it comes to probate and properly selling assets in the estate.  Most will say they have experience but you should always ask for specific closed addresses and what was the client situation? Another good question to ask them is do they know the difference between full authority and limited authority ? and have they closed both types of those escrows.  

We at the orozco group have closed numerous escrow with our clients having full and limited authority. In fact we specialize with complicated situations such as a probate with a reverse mortgage that is now foreclosure! We also deal with any problem tenants or occupants so you the petitioner don't have to. Call us to experience our knowledge and ability to stream line the whole process for you.