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Old 09-14-2009, 06:16 PM   #1
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Probate

I'm guessing someone has run into this before or knows about it. Assume a parent dies and has a revocable (living) trust which holds all the significant assets. They also have, as part of the estate plan, a will which covers anything left out of the trust (essentially nothing). In California, is it still required to go through probate?
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Old 09-14-2009, 06:49 PM   #2
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I just when through this drill. According to my trusty copy of "How to Probate an Estate in California":

Quote:
Formal probate isn't necessary if most of the decedent's assets were held in joint tenancy or in a trust, as community or separate property that passes outright to a surviving spouse or partner, or in small estates containing property valued under $100,000.
In my case there was a grantor trust that became irrevocable on death, and a 'pour-over' will that directed that anything not already in the trust should be in the trust. Everything not already explicitly titled as being in the trust totaled well under the $100,000 limit, so we were able to use 'summary procedures' for a simple probate, no judges or lawyers. (There's a long list of things that don't count toward the $100,000, like registered motor vehicles and assets with named beneficiaries.)

The Nolo Press book had some useful bits in it, including form letters to send out to creditors and whatnot, requirements and a sample notification letter to be sent ot all trust beneficiaries, Affidavit of Death of Trustee to be filed and recorded for real property in the trust, and a bunch of other goodies.

I've gone all the way through the process to the 'file combined estate and trust tax returns' bit, now waiting on paperwork from a bank and mortgage company. I did buy an hour of time from a lawyer once I'd read through the book and formulated some questions, but other than that I did it myself. (Martha, please don't cringe. I think I got it pretty close. )
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Old 09-16-2009, 01:15 PM   #3
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In California, is it still required to go through probate?
I think you're still required to file the will with the courts, but below a certain threshold of assets you're not required to probate.

And the only effective reason to file the will is to have it recorded so that all the various databases will update to reflect the deceased's passing. Otherwise you'd be doing it one phone call, letter, and certified copy of a death certificate at a time.

The up-front cost of the revocable living trust is supposed to be paying off now by avoiding the expense of the probate process.
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Old 09-16-2009, 06:40 PM   #4
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I thought the job of probate was to change ownership of property consistent with a will. An asset owned by the revocable living trust, which becomes irrevocable upon the passing of the last grantor, is to be disbursed by the trustees consistent with the terms of the trust. Property owned by the trust doesn't need to be probated.

Except to resolve the deceased's assets or to notify heirs who have not been provided a copy of a will I don't see the need for probate. In my area a death is reported in the newspaper of record in the community to notify potential claims on the estate.
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Old 09-16-2009, 09:38 PM   #5
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I thought the job of probate was to change ownership of property consistent with a will. An asset owned by the revocable living trust, which becomes irrevocable upon the passing of the last grantor, is to be disbursed by the trustees consistent with the terms of the trust. Property owned by the trust doesn't need to be probated.

Except to resolve the deceased's assets or to notify heirs who have not been provided a copy of a will I don't see the need. In my area a death is reported in the newspaper of record in the community.
It varies state to state. That's why I suggested a more formal source than The Internets.

In my case, there was a saving account that wasn't titled into the trust, and wasn't listed in the trust assets. We used a summary probate procedure to claim the account and transfer funds to a trust account. The procedure in California consisted of waiting until 40 days after death, and filing a notarized affidavit with the bank. (BTW, banks often have their own pre-written version of the appropriate affidavit, and balk at taking one written by someone else. Just ask the banker for one, fill it in, get it notarized, and file.)

Vehicles registered in California also have to go through a summary probate procedure, even if in a trust. The DMV wants it that way. Again, it is a matter of waiting 40 days, filling out the right forms, and dropping by the DMV.

The Nolo press book in Post #2 is a pretty good reference for doing this in California.
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Old 09-17-2009, 09:56 AM   #6
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Thanks for the good info. I've read that (in CA) even if there is no probate, a will must be "deposited" with the Superior Court. I didn't know about the DMV, but the car (I hope is titled to the trust) is at least in joint tenancy w/surviving MIL from one old copy of the pink slip I've found so far. Need to look at current registration. Found an old grant deed on the house and it, too, is joint tenancy, and hope to goodness they re-titled it to the trust. I think I saw a packet with another grant deed on the first pass through the files. Have to go back and find out what's what. We have the estate attorney who wrote the trust and will probably call once I find out as much as I can so I can keep it brief with him.

We are dealing with the things that need most immediate attention first, obviously. Have handled Social Security, and are awaiting a packet of forms from the insurance company that has the company pension. Will contact the life insurers in the next few days. Fortunately, FIL was pretty together on record keeping. Still it is quite a bit of work.

Personally, I've got everything organized in a folder at home with a copy in a safe location with all info including addresses, phone numbers, account numbers, contact names, etc. so it should be less problematic for whomever get the chore.
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Old 09-17-2009, 12:48 PM   #7
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You can check the title with the County. Sooo often people create a living trust but don't fund it.
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Old 09-17-2009, 03:27 PM   #8
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Sooo often people create a living trust but don't fund it.
This is my quiet fear.
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Old 09-17-2009, 03:43 PM   #9
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Quench that fear, the title of the house - at least - is a public record.
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Old 09-24-2009, 02:38 PM   #10
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Originally Posted by M Paquette View Post
Vehicles registered in California also have to go through a summary probate procedure, even if in a trust. The DMV wants it that way. Again, it is a matter of waiting 40 days, filling out the right forms, and dropping by the DMV.

The Nolo press book in Post #2 is a pretty good reference for doing this in California.
I just obtained the Nolo press book from the library and it is excellent. Thanks for the tip. But I find no reference in it re: needing summary probate for the auto. As it turns out, it wasn't ever retitled to the trust, so it remains in joint tenancy and can be retitled either to my MIL or the trust by filing a form (REG 5 or so it seems so far).

Also, no mention in the book of the need to file a will if there is to be no probate. This will be one question for the estate planning attorney when we are ready to call him.
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Old 09-24-2009, 03:04 PM   #11
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Originally Posted by ronin View Post
I just obtained the Nolo press book from the library and it is excellent. Thanks for the tip. But I find no reference in it re: needing summary probate for the auto. As it turns out, it wasn't ever retitled to the trust, so it remains in joint tenancy and can be retitled either to my MIL or the trust by filing a form (REG 5 or so it seems so far).
Yup. The DMV has the forms on-line.

Transfer a vehicle without probate

Fill out the REG 5 form, and also do a REG 256 to indicate a parent/child transfer so you won't need smog check. $15 transfer fee is all they'll charge. (Edit: Oops. I see this is a spousal transfer. Never mind...)

Quote:
Also, no mention in the book of the need to file a will if there is to be no probate. This will be one question for the estate planning attorney when we are ready to call him.
Page 18, in the section "Is Someone Else Has the Will", mentions Probate Code Para 8200. I just mailed it (certified, return receipt) to the Clerk of the Superior Court in the appropriate county, after making copies. There's no charge for filing a will. The clerk can then provide certified copies should anyone need that. (Nobody should if all goes well.)
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Old 09-24-2009, 03:20 PM   #12
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On page 18 it also says further down that: "in nonprobate matters, where the original will is not required by the court, it is a good idea for the named executor to keep the will in a safe place with other valuable papers."

I interpret this section as dealing with securing the will for use in probate. I'm going to look up Probate Code 8200 and see what it says. Thanks for pointing this out.
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Old 09-24-2009, 03:26 PM   #13
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Here's the actual code:

8200. (a) Unless a petition for probate of the will is earlier
filed, the custodian of a will shall, within 30 days after having
knowledge of the death of the testator, do both of the following:
(1) Deliver the will to the clerk of the superior court of the
county in which the estate of the decedent may be administered. No
fee shall be charged for compliance with the requirement of this
paragraph.
(2) Mail a copy of the will to the person named in the will as
executor, if the person's whereabouts is known to the custodian, or
if not, to a person named in the will as a beneficiary, if the person'
s whereabouts is known to the custodian.
(b) A custodian of a will who fails to comply with the
requirements of this section is liable for all damages sustained by
any person injured by the failure.
(c) The clerk shall release a copy of a will delivered under this
section for attachment to a petition for probate of the will or
otherwise on receipt of payment of the required fee and either a
court order for production of the will or a certified copy of a death
certificate of the decedent.

I interpret this as yes, but...

It's intent is to locate and secure a will if the executor doesn't already possess it and provide a mechanism for it to be produced at probate. Since no one is going to sustain damages for failing to file and the executor already has the will and there is no probatable estate ... clear as mud!
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Old 10-07-2009, 12:33 PM   #14
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So, talked with the attorney yesterday. Upshot is:

* Have to deposit will with superior court.
* Have to notify MediCal (even though FIL was never on it, in case they need to put a lien on estate)
* Have to notify trust beneficiaries (including contingent beneficiaries) in writing with a copy of the trust.
* Some various estate doc house keeping to update the trust and powers of attorney
* Should get house appraised in case MIL ever sells due to step up in basis (didn't think of this one)
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