San Diego Estate Planning Lawyer Blog

Published on: June 28, 2011

San Diego Probate: Transferring a Vehicle without Probate: 2011

The San Diego Superior Court has instructions on how to transfer a vehicle without probate. On the probate section, there is a section discussing the transfer of a vehicle without probate. The California Department of Motor Vehicles also has a section on the transfer of a vehicle without probate. To transfer a motor vehicle without probate, the below is the procedure.

The following documents must be submitted to the California Department of Motor Vehicles [DMV]: a title certificate; odometer disclosure statement; statement of facts with the applicable provisions completed; affidavit for transfer without probate and, if owned jointly by two or more deceased person a death certificate for each owner who is deceased. The transfer of ownership cannot be sumitted until 40 days after the death of the owner. If registration fees are due before this period, then these should be paid to avoide penalties.

There is a fee for the transfer of the vehicle ownership. These fees could include any past due amounts or penalties.
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Published on: June 23, 2011

San Diego Superior Court Probate Timeline: 2011

by Scott C. Soady

The San Diego Superior Court has a probate timeline on their website. The administration of probate can be very complicated and time consuming. The timeline guidelines below are not necessarily what will happen in your case and is used for a general outline of the process and probate timeline.

The first step is to file a probate petition. A hearing will be set and will be from 4-6 weeks after the petition is filed. During this time, you will need to publish the notice of the petition to administer the estate and mail notice of the petition to administer the estate to all persons who are entitled to receive notice. There are very strict time periods and an attorney can assist.

The second step is to check the probate notes, before the hearing, to make sure that there are no defects in the petition and that all necessary documents have been filed.

After the Probate petition is approved, you must submit your Probate Orders, letters and a bond if required. After a minimum of four months from the date of the hearing, you may prepare your inventory and appraisal and file with the San Diego Superior Court, Probate Division and send to the San Diego County Probate Referee. In addition, there must be notice given to all known creditors and you will either accept or reject these creditor claims. Debts will be paid and tax returns filed and, again, there are strict deadlines. Usually 12-18 months from the date of appointment, there will be a final accounting and distribution.
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Published on: June 21, 2011

Holographic Wills: Proof Required: San Diego Superior Court

by Scott C. Soady

In the San Diego Superior Court, a holographic will may be introduced in a Probate proceeding. A will can take many forms including holographic. A holographic will can be defined as a will which is hand written.

In California, the law will allow a holographic will under certain conditions. This is very complicated and an attorney should be consulted. In San Diego, California, for a holographic will be be valid and according to proof and all sections of the will which are necessary for validity must be entirely written by hand. The person writing the will must sign in hand writing. The will cannot be ambiguous and must have all of the mandatory language.

In California, in addition, there is a form for proof of a holographic instrument. The declarant has to state how many years they knew the decdent, their knowledge {must be personal} of the handwriting of the decedent and that the holographic will and its handwritten provisions were written and signed by the hand of the declarant. If this cannot be proved in this way, then a handwriting examiner may be required.
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Published on: June 16, 2011

Duties and Liabilities of a Personal Representative in Probate Court: San Diego, California

by Scott C. Soady

In San Diego, the filing of a petition for probate is the beginning pleading to allow the San Diego Superior Court to obtain jurisdiction over the decedent’s estate. When the court appoints a personal representative, there are many liabilities and duties. In probate litigation, it is very important to understand your rights and also your responsibilities.

Some duties include managing the assets of the estate. Considerations for this are as follows: interest bearing accounts and other investments; keeping estate assets segregated; prudent investments and there are other restrictions. There may be a bond equired in order to be appointed at the personal representative.

Other duties include an inventory of the property of the estate. Considerations for this include filing an inventory and appraisal, determining the property value, locating any property of the estate and filing a change of ownership if necessary. There are many duties in addition to these and also included in this general description and also liability if the law is not followed.
The personal representative may also have to give notice to creditors, obtain insurance and keep accurate and complete records.
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Published on: June 14, 2011

San Diego Probate Court: Wills, Trust and Estate: 2011

by Scott C. Soady

The San Diego Superior Court has a lot of information on different areas of the law. The divisions are broken down by area of law and there is a section devoted to probate which has information on many probate issues.

Information includes the definition for probate as a court supervised process for gathering and identifying the assets of the decedent as well as distributing the balance to beneficiaries after paying expenses, debts and any taxes owed to the IRS. Probate also involves the transfer of property of the decedent to beneficiaries. Probate can also involve deciding if a will is valid and other issues brought before the Court.

Not every estate has to go through probate. In San Diego, California, for estates under $100,000, there are procedures to transfer property without a court order. The valuation of an estate can be difficult and needs to be completely accurate.
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Published on: June 9, 2011

2011: San Diego Probate Court Rules

by Scott C. Soady

In San Diego, the San Diego Superior Court has jurisdiction regarding probate cases. One division is the Probate Court. The Probate Rules are very important as they must be complied with any probate case.

The Probate Court Rules include the probate rules under title seven, the probate local rules, the San Diego County Superior Court rules which are effective January 2, 2011, the Probate Court 1 polices and procedures, the Probate Court 2 policies and procedures as well as Probate Department N-23 polices and procedures. It is very important to fully comply with all of the rules and they can be very complicated.

Probate administration can be a very stressful experience for the parties. One of the probate procedures includes the Probate Examiners. There may be a tentative ruling and/or a telephonic court conference before the hearing. The court calendar can often have many parties appearing on the same morning or afternoon and cases can also be continued.
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Published on: June 7, 2011

2011: Pour Over Will

by Scott C. Soady

A pour over will is one of the documents normally contained in a revocable living trust. The purpose of including a pour over will is to try and avoid probate court and litigation of the asset. If your pour over will, or revocable living trust, is more than five years old, it is prudent to have reviewed to make sure all of the content is current and up to date. Laws in San Diego, California change and a restatement of the trust, or a new trust with a new pour over will, may need to be prepared.

A pour over will’s purpose is to transfer any assets which are not included in a revocable living trust into the trust. If achieved, then this can avoid probate of the estate. If not, then the disposition of these assets can be the subject of a probate. There are many requirements for a pour over will. If all of the requirements are not met, then the pour over will may fail. There is also a will included in the revocable living trust for assets in the name of the trust.

A pour over will is very important since, many times, not all of the assets are in the revocable living trust at the time of death. In many cases, assets are purchased or acquired after the date of the preparation of the revocable living trust such as houses, cars, bank accounts or others. If these are not included as assets in the revocable living trust, then the pour over will attempts to transfer into the trust. The best procedure is to include any assets acquired after the trust is completed in the trust.
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Published on: June 2, 2011

2011: Revocable Living Trust: Definition

by Scott C. Soady

A revocable living trust, be definition is a legal agreement for the trustee to hold property [legal title] for a beneficiary. A revocable living trust is one of the only legal documents you can make with yourself which is legally binding. Another name for a revocable living trust is an inter vivos trust.

This trust, which is revocable, is created to avoid probate while still obtaining the goal of property management both short term and long term. The modifiability of a revocable living trust gives it advantages so that beneficiaries can be added or removed and other conditions regarding disposition of property made. The trust can also be completely revoked.

The Internal Revenue Service has specific rules and regulations for revocable living trusts. In addition, the San Diego County Probate Court has jurisdiction to enforce the terms and conditions of a living trust if the trust administration is contested.
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Published on: May 31, 2011

Walt Disney’s Family Feud Show Common Issues in Estate Planning

by Scott C. Soady

Currently there is a feud going on involving two of Walt Disney’s grandchildren and their share of the huge Disney fortune. Walt Disney died in 1966 leaving two daughters and 10 grandchildren. One of his daughters Sharon Disney had married and then divorced a real estate developer named Bill Lund who located and assisted in the purchase of the land which became the Disney World site. Sharon and Bill had two children Michelle and Brad. Sharon created an estate plan to leave her share of the Disney fortune to her two children from her marriage to Bill and one child from a previous relationship. She made her ex-husband as one of the four co-trustees of the childrens’ trusts. The trustees were to determine whether the three children were competent to receive the monetary distributions at ages 35, 40, and 45 and the yearly payments of income. The disbursements were approximately $20 million per child every five years.

To complicate everything, Sharon then died and her ex-husband remarried. Then in 2009 Michelle, Sharon and Bills’ daughter, suffered an aneurysm and her father began caring for her as the trustee of her trust. Family members sued in court to remove Bill claiming that he was trying to isolate her from family and friends and take over her estate. As time went on, the other co-trustees of Michelle’s trust also filed petitions in the probate court to remove Bill as a co-trustee. Eventually Bill agreed to resign as trustee in exchange for significant yearly payments.

The drama continues over the Disney fortune because Brad, the son of Sharon, is developmentally disabled and needs a conservator to manage his affairs. Michelle, his sister, does not believe that her father Bill and his new wife should be managing Brad’s estate. The huge attorneys fees are draining the estate.

Published on: May 28, 2011

Making Gifts to Minors

by Scott C. Soady

Many clients want to know how they can benefit their grandchildren while grandma and grandpa are still alive. One way is under the California Uniform Transfers to Minors Act. This law in California allows you to give gifts to minors under the age of a 18. The gift may be stock, mutual funds, cash, or any other asset which is then managed by a custodian on behalf of the minor. The custodian can invest the asset and add additional assets but the owner is considered the minor. The custodian can keep the assets in this custodial account until a designated age; in California the upper limit is until the child is 25 years old. At the designated age, the assets are turned over to the minor.

For example, if you want to open a custodial account for a minor grandchild and have the asset given to him at age 21, the account will be titled in the name of the custodian for the child “until the age of 21, under C.U.T.M.A.” Should the child die before the child reaches the age of 21, the asset will be part of his estate. Should the custodian predecease your grandchild before he reaches the age of 21, a successor custodian can be appointed. Often you will be choosing one of your children to act as the custodian or a trusted family friend.

Another way to benefit a grandchild is to create a trust for that child as part of your estate plan. You can specify the reasons the child would receive distributions and the ages at which the principal would be distributed. One thing you do not want to do is leave assets to your grandchildren without any type of custodial account or trust. If you do that, the minor cannot receive the gift outright and there has to be a guardianship set up for him through the probate court, something that is expensive and unnecessary if you plan ahead.