Articles Posted in Probate

AN APPRAISAL IS NEEDED UPON DEATH OF A PROPERTY OWNER.  A routine part of trust administration or probate administration is to obtain an appraisal of each property owned.  This is for income tax reasons.  Because the income tax basis is increased “stepped up” upon death to fair market value an appraisal is needed to prove the exact date of death value.  A licensed appraiser is needed to do this.  A realtor’s letter of value opinion is not sufficient.  There are licensed residential appraisers and licensed commercial property appraisers.  Aside from tax purposes, an appraisal is also useful to determine actual value to help to deciding what to do with a property.

INCOME TAX “BASIS” CONCEPT. Under our system of federal and state income tax, if the property is sold before death for more than what was pay for it then there is a capital gain. There are special rates which apply to capital gains depending  upon one’s tax bracket. To compute capital gains, you subtract the income tax basis of the property from the net selling price. The income tax “basis” is what was paid for the property in the first place minus any depreciation and adding any expenditures for capital improvements.

DEATH AFFECTS THE BASIS. The basis of property acquired from a deceased person’s probate estate or trust is generally it’s “fair market value” on the date of the decedent’s death. Thus, the children who inherit a property from their parents through a trust or through a probate proceeding will have a date of death income tax basis. This is known as the step-up in basis at death. An appraisal is necessary to legally prove the date of death value.

SORT OUT WHAT NEEDS TO BE FILED.  A routine part of trust administration or probate administration is for the Probate Executor or the Successor Trustee of a living trust to sort out the income tax situation.  First, you have to determine if the individual income tax return filings of the deceased are up to date.  Individual tax returns, form 1040 federal and form 540 state are due each April 15 for the previous year.  Thus, 2016 returns were due on April 15, 2017 and so on.  It is the responsibility of the Executor or Successor Trustee to make sure the proper returns are filed.

INDIVIDUAL RETURNS FOR THE YEAR OF DEATH.   Individual income tax returns are due for the year in which a person dies, even if they do not live until the end of the year.  Thus, if a person dies on October 10, 2016 for example, the normal individual returns for 2016 would have been due April 15, 2017.  The due date can be extended 6 months by filing extension request forms by April 15.  The returns filed should check the box “final return” and state the date of death of the deceased.  If you forget to check the box of it being a final return, then the IRS will keep sending you letters in later years asking for returns to be filed.

FIDUCIARY RETURNS FOR THE YEAR OF DEATH.   In addition to the individual tax returns, fiduciary income tax returns, forms 1041 federal and 541 for the state are due if the estate or trust has income received after the death of the person involved.  (If the income is below the filing limit for that year the fiduciary returns may not be due but there may be reasons to file them anyway so the trust has a complete filing history.)  Thus, in the above example of a person who died on October 10, 2016, there would need to be fiduciary tax returns filed to report the income received from October 10 until December 31, 2016.  Those returns would be due April 15, 2017 but can be extended 5 months until September 15 if extension application forms are filed by April 15.  This situation typically occurs where the trust or estate has income earning assets such as bank accounts or stock market accounts or rental properties.

Typical situation.  An elderly mom with two adult children, Sally & John, passes away with a house full of nice personal belongings (furniture, antiques, crystal and jewelry).  Sister Sally lives with mom or in the same town and brother John lives 500 miles away. When mom passes, Sally notifies John but it takes him a couple of days to get into town for the funeral.  Meanwhile, Sally picks through the personal belongings and takes for herself what she wants and doesn’t tell John about it.

What actually should be done but rarely happens.  A Upon a death, the law requires that the deceased person’s personal property as well as money and real property be inventoried and accounted for.  Whether it is a probate situation or a living trust situation (i.e. no probate because of there being a trust in place), somebody needs to pay immediate attention to the personal property within a day or two.  It is a sad fact of life that I and nearly all other estate attorneys have observed that personal property often disappears without any trace unless steps are taken to preserve it.  In the ideal situation, the entire house including the personal property is photographed immediately and then detailed lists are made, room by room, of what is there.  Then, a personal property appraiser is hired to make a detailed listing of everything and appraise the values.  Few people realize it, but there are professional appraisers.  One resource is the American Society of Appraisers which can be found at http://www.appraisers.org/Disciplines/Personal-Property

What can be done to recover missing personal property?  The short answer to this is that very little if anything can be done.  This is the classic case of once the horse is out of the barn the remedies are few an ineffective. Theoretically, as in the example above, brother John can file a probate court petition against sister Sally but it is up to John and John’s attorneys to prove that Sally took the items in question.  Unless there are photographs or written evidence created very close to the mom’s passing, John can’t produce evidence to prove (a) what the missing items were and/or (b) that mom still owned them at her death or (c) that Sally took the missing items.  If John files against Sally she will typically deny any knowledge of anything.  If it were money missing, then bank records can be subpoenaed to prove what money was taken and whose account it went into.  Not so with personal property, unless the items are of significant value or are put up for sale in something observable such as Craig’s list.  Because mom’s personal property is not typically on people’s minds in mom’s last days, not a lot of care or record keeping is done to keep track of what there is.

Let’s Subtract the Money Johnny Got From His Share of the Estate

TYPICAL SITUATION

A father dies without a will leaving an estate of $100,000.  Under the laws of intestate succession which apply because there is no will, his 4 children are to receive equal shares of the estate which would be $25,000 each. However, during the 10 years leading up to his death, the father had transferred $20,000 cash in total to his son Johnny thus creating a pre-death transfer.   There was no documentation stating whether the $20,000 was a gift or a loan or an advancement against Johnny share of the father’s estate.

Siblings arguing over money

California Law Solution to Pre-Death Transfers

These pPre-death transfers and other similar types of situations have the potential for endless litigation to try to determine what was intended at the time the money was transferred. The state legislature solved this by establishing the following rules.  A decedent’s gifts to an heir during his life will be deemed an advancement against  his or her share of the estate only if one of the following conditions is satisfied:

  1. The decedent declares in a contemporaneous writing that the value of the gift is to be deducted from the heir’s intestate share of the estate or that the gift is considered an advancement against the heirs share of the estate. OR

WHAT IS IN THE ESTATE AND HOW THE PERSONAL REPRESENTATIVE FIND AND MANAGE IT?

PROBATE ESTATE ADMINISTRATION

Probate Asset Inventory & Collecting – If a person passes away leaving money or property there may need to be a probate court administration of the estate. If there is a living trust and all of the deceased person’s assets have been placed into the living trust prior to death, there is no need for a probate court administration and the procedures discussed in this article would not be applicable to a living trust situation. The point of a probate court administration is to get somebody appointed as the administrator or executor of the estate (also known as the personal representative) who has authority of the court to handle to inventory and handle the money and property and accounts of the deceased person. Upon appointment by the court, the administrator will obtain a form signed by the court entitled letters of administration. The personal representative will then take the letters of administration over to all banking and securities institutions and have the accounts transferred out of the name of the deceased and into the name of the personal representative.

COLLECTING AND INVENTORYING THE ASSETS

In probate estate terminology the personal representative’s initial and most important responsibility is the “marshaling” of all assets and property interests held in the decedent’s name and/or owned by the decedent. This would include the decedent’s separate property and one half interest in community property held with his or her spouse. “Marshaling” is further described as the process of discovering, identifying, and taking possession and control of the decedent’s assets so that they can be used to pay the taxes, creditors claims, and expenses of administration and ultimately distributed to the estate beneficiaries.

Probate Asset Inventory & Collecting – Identify ALL Real & Personal Property

Collecting of of all assets and property interests

CAN A DECEASED PERSON’S ESTATE ESCAPE PAYING DEBTS & TAXES?

PROBATE ESTATE ADMINISTRATION

Can we avoid paying debts?If a person passes away leaving money or property there may need to be a probate court administration of the estate. If there is a living trust and all of the deceased person’s assets have been placed into the living trust prior to death, there is no need for a probate court administration and the procedures discussed in this article would not be applicable to a living trust situation. The point of a probate court administration is to get somebody appointed as the administrator or executor of the estate (also known as the personal representative) who has authority of the court to handle the money and property and accounts of the deceased person. The personal representative is also responsible for paying the debts and taxes before the estate is distributed out to the heirs.

CREDITORS

Probate Debts & Taxes – Persons or companies who are owed money by the deceased person are known as creditors. Creditors include those with contract claims, tort claims (as an accident claim for example), or otherwise.  They California and local government agencies including the franchise tax board are generally subject to the same creditor claims and notification rules.  However, taxes owing to the federal government are covered by federal law.

NOTIFICATION TO CREDITORS

NOTIFICATION TO CREDITORSThe personal representative is required to notify the creditors so that the time limit for filing their claims with the probate estate starts to run. The initial notification to creditors is the publication of the notice of petition to administer estate in the local newspaper which is done as part of the procedure of filing the probate case with the probate court. The personal representative does need to send out a notice to “all known and reasonably ascertainable creditors” in the mail.  The court published form used for this notification contains a warning to creditors to file their claims within the applicable time limits which are the last to occur of the following dates: four months after the date the personal representative is appointed by the court or 60 days after the date the notice to creditors was mailed. It is incumbent upon the personal representative to notify every conceivable claimant so that these time deadlines begin to run because the estate cannot be closed and distributions cannot be made until these time periods have run.  The special limitations on creditors claims are designed to speed up the administration of a probate estate. Without these certain time periods, creditors would be allowed to file lawsuits far into the future. Typically, a claim on a written agreement or account which is unpaid can be sued on up to four years from the date of payment is due. The creditors claim rules supersede the 4 year limit.

What To Do When Someone Lacks Mental or Physical Capacity?

WHAT IS A CONSERVATORSHIP?

A conservatorship is a court proceeding to protect a person and/or his or her property. Conservatorships are regulated by the California probate code and operate under the supervision of the probate court system.

How Does the Successor Trustee Handle the Bills and Debts of the Deceased Trustor?

LIVING TRUST ADMINISTRATION

Successor Trustee paying trustor debtsIf there is a living trust and all of the deceased person’s assets have been placed into the living trust prior to death, there is no need for a probate court administration. Creditor Rights? For probates, there are specific court-supervised formal steps required to notify creditors and for approval and rejection of creditor’s claims. The situation involving a trust is much less formal and the laws differ somewhat. The person who administers a living trust following the death of the trustors (the persons who created the trust) is known as the successor trustee.

The successor trustee’s job is to follow the directions in the trust for the distribution of the trust estate to the beneficiaries. The successor trustee’s job may also be to pay the debts and bills of the trustors before distributing the estate to the beneficiaries, depending upon how the trust is worded.

TRUST & BENEFICIARIES GENERALLY LIABLE FOR THE DEBTS

By law, a living/revocable trust is liable for the debts of the trustors. The death of the trustors causes the living trust to become permanent and irrevocable. However, the debts still remain and the creditors to whom the debts are owed have rights against the trust to collect the money owed if the trust was revocable at the date of death of the trustors. If the successor trustee does not pay the debts but instead distributes the trust assets to the beneficiaries, then the creditors can sue the beneficiaries. In other words, the trust assets passed to the beneficiaries are still liable for the debts of the trustors. If the beneficiaries are sued by the creditors then they can cross-complain back against the successor trustee for failing to pay the debts. For this reason, a successor trustee may want to use the optional trust creditors claim procedure discussed below.

Orange County Probate Court Litigation Lawyer

YOU CAN FILE LAWSUITS OVER PROBATE ESTATE MATTERS

PROBATE COURT SYSTEM

summons-740Part of the California Superior Court system is dedicated to administration of trusts and estates and the deciding of lawsuits over all aspects of trusts and estates. Probate court litigation lawsuits in the probate court are known as “petitions”. All counties in California have probate divisions with their own judges and staff and clerks which are separate from the Superior Court civil divisions and criminal divisions.  Probate court has its own set of laws, rules and regulations.

INITIATING A PROBATE PETITION

To start a probate court case a written petition is prepared which states what is being complained about, identifies the parties involved, and asks for specific relief. The parties are known as the petitioner and the respondent this is equivalent to the plaintiff and defendant in a civil case.  A probate petition is the equivalent of a lawsuit complaint filed in civil cases in the Superior Court. An example of specific relief would be to ask the court to remove the estate executor or the trustee of the trust for some sort of wrongdoing. Another example for specific relief would be to ask the court to make the estate executor or trustee pay back money that was wrongfully taken or spent.

TYPICAL MILESTONES

When a probate petition is filed with the court, the clerk assigns an initial hearing date which is typically 4 to 6 weeks away.  At or before the hearing date, the respondent to the petition must file opposition to the petition stating his or her defenses and point of view of the situation.  If opposition is not filed, the petition will be granted at the initial hearing. If opposition is filed then the court will set the case for a status conference and or settlement conference typically many months down the road. If the case cannot be settled after a settlement conference, the case will be set for a trial setting conference. At the trial setting conference a trial date will be established. Trials in the probate court are in front of a judge only as there are no juries. In Los Angeles and Orange County Superior Court it typically takes a year or longer to get to trial because of the shortage of judges and staff at the courthouse and because these types of cases can involve complex matters which take time to put together.

How Do You Figure Out Who Gets What? – Inheritance with Simultaneous Deaths

LEGAL BACKGROUND: 2 WAYS TO INHERIT

Under California law a person can inherit money or property (1) as a result of being named in a legal document such as a will or (2) inheritance can occur because a person is related by blood or marriage to the deceased if there is no will.

AN EXAMPLE

Couple killed in auto accidentIt happens all the time – A married couple is in a serious auto accident. The man has children from a previous marriage and the woman doesn’t have any children. The man dies instantaneously and the woman dies four days later. Neither one has a will.  They own money and assets together which are community property (their “estate”). Who will inherit their estate?

SURVIVORSHIP CONCEPT

Under probate and inheritance laws the person who is called the “survivor” is one who lives the longest.  Thus, in the case of the example above,  if the husband dies first then the wife is known as the “survivor” or the “surviving spouse”.  The inheritance laws are set up on the general concept that the survivor will inherit the money and property of the one who dies first, especially if there is no will.

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