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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about how we find assets in a trust or will contest case.  And this is a problem.  This is something that we have a hard time explaining to clients, at times, because the clients come to us and they say I know Mom and Dad had gold bars, silver bars, cash in a safe.  I know that there’s some personal property items that are out there that Mom had and my brother’s taken them and sold them to a pawn shop.  How do we prove that?  How do we get the assets back?

And there’s some good news and bad news here.  But, the good news is, if an asset has a title to it, such as a bank account, that has a title.  A car has a title.  A house generally has a title.  Retirement accounts have titles.  These are generally larger assets in a person’s estate.  We can generally find those assets out there by serving subpoenas on parties that have those documents so that we can look at them and determine what the value of those assets were on the date of death, maybe even prior to the date of death, and then, of course, what they’re worth today.  And we can ask whoever was in control of those assets after someone passed away, what have they done with those assets?  Have they spent them on themselves?  Or have they saved them for the rightful beneficiaries of the trust or the will?

So that is one way that we find assets in these cases.  Sometimes I feel like clients look at us and say, you’re the lawyer, you’re the expert.  Can’t you just go out there and find these assets?  Aren’t these assets just available for you as a specialist in this arena, to go and find.  And what I tell clients is, I wish that were the case.  I wish I had a magic wand that I could waive and I could find all of the assets that had disappeared or gone missing that once belonged to your Mom or your Dad prior to their passing.

There’s going to be some assets that you’re just not going to be able to find in these cases.  Rarely will you find someone whose stolen assets.  Rarely will you have them come to a deposition and they admit that they’ve stole assets.  Even if they get to the point where they say yes, there were some cash in a safe of $200,000.  They’re going to tell you that Mom or Dad gifted that cash to them.  And then that will be the new argument, whether it was a gift, whether it was a loan, whether they took it without permission.  That will be an issue to decide at the time of trial.  But, in most cases, if $200,000 cash is missing, changes are finding it are not going to be great in these cases.  I wish that was not the state of affairs for trust and will cases in California, but, ultimately, if we have titled assets, we can find them.  If we have untitled assets, it can be a problem and the sooner people understand that, come to grips with that, it’s much easier for us to move forward in the case.

Is an oral promise to make a will or trust enforceable under California law? Contrary to what many believe, California law provides for the enforcement of oral promises to make a will or trust.

How does the promise to make a will or trust arise? Generally, a parent orally promises a child, a friend, or a caretaker some or all of their assets once they die, if the child, friend, or caretaker agrees to do something for the parent. The “something” can be anything of value, but usually takes the form of the child, friend, or caretaker taking care of the parent until the parent’s death.

But what if the parent didn’t get around to writing a will or trust that states the child, friend, or caretaker gets some or all of the parent’s assets after they die? Or what if the parent never intended to write a will or trust reflecting the promise to the child, friend, or caretaker? Can the child, friend, or caretaker enforce the now deceased parent’s oral promise to give them assets? The answer is ‘yes’.

California Probate Code section 21700, entitled “Contract to make will” has a provision that allows a person to establish an oral promise by establishing that there was an agreement between the parent and the child, friend, or caretaker that the parent would leave some or all of their assets to the child, friend, or caretaker after they died.

But this is where it gets a bit tricky. The procedural hoops one must jump through to make a an initial claim to enforce an oral promise to make a trust or will under California requires the following:

  • First, one has to pay attention to the applicable statute of limitations. The statute of limitations simply tells us how long we have to file a lawsuit to enforce an oral promise. The applicable statute of limitations for filing a lawsuit to enforce an oral promise to make a will or trust is one year from the date of death of the parent. So if the parent dies on January 1, 2014, then the child, friend, or caregiver would have one year (to December 31, 2014) to file an actual lawsuit to enforce the claim.
  • Second, it gets even trickier. Before one can file a lawsuit based on a broken promise to make a will or trust, one must file a “creditor’s claim” in the estate of the deceased parent. The creditor’s claim is not difficult to complete and file, but if one fails to complete this step, and one year passes from the date of death of the parent, one is very likely barred forever from filing an actual lawsuit to enforce the parent’s promise.
  • Third, it’s still tricky. What if nobody has opened the deceased parent’s estate with the probate court? Can one simply wait until an estate is opened, whether that’s one or two years from now, and then file their creditor’s claim? The answer is very likely ‘no’. The applicable statute of limitations states that to enforce an oral promise to make a will or trust, a lawsuit must be filed within one year of the date of death of the parent. So if the probate estate is not opened, then one needs to file a petition for probate to open the parent’s estate with the probate court, file a creditor’s claim, and then file a lawsuit—all before the one year passes from the parent’s date of death.

Each of these steps must be completed before one can have their day in court to prove a claim based on an oral promise to make a California will or trust. If the one-year statute of limitations (calculated from the deceased parent’s date of death) is blown for any reason, the claim to enforce the oral promise is barred forever from being heard. Thus, it’s very important for one to understand and meet the procedural loopholes required to make a claim to enforce an oral promise.

The confusing world of Trust and Will lawsuits, it can be quite a quagmire.  Especially if you are looking on the internet for information because every state does things differently when it comes to the trust and will arena.  Even the term “Probate Court” can mean vastly different things in different states.

Let me see if I can demystify some of the confusion I hear about as it relates to California Trust and Will lawsuits.

Practice Area: 

1.         Can a Court other then where the Trust matter is filed remove a Trustee?  No.  In California, Trust matters are filed in the Probate division of the Superior Court.  There is no other Court that can take a Trust action and remove a Trustee.  Oftentimes I hear people ask if they can bring a “civil suit” after something is filed in Probate, or a small-claims action, none of that is possible (generally speaking) if you are dealing with a Trust or Will matter because the proper venue for anything that takes place under the Probate Code is the Probate division.

I have heard that some states (like New York) provide a choice of venue between Probate and civil, but that does not apply to California.

2.         Is Probate Court the same as Civil Court in California?  Yes.  Actually the term “Probate Court” is a misnomer because both Probate and civil departments are part of the Superior Court (as is family law “court”).  That means the “Probate Court” has all the same powers and abilities to decide and rule on lawsuits as the civil department of the Superior Court.

3.         Can a Trust beneficiary file a legal action in the state where the beneficiary resides instead of in the state where the Trustee resides?  No.  Under California law, any action against a Trustee, whether it be a Trust contest, and accounting, or some other breach of trust action, must be filed where the “place of administration” is located.  If the Trustee has not specified a place of administration, then the proper venue is where the Trustee resides or his/her place of business.  In any event, jurisdiction and venue usually depend on the location of the Trustee, which is where the action is filed, NOT the location of the beneficiary.

4.         Is Probate Court only for filing Wills (or estates that have no Will)?  No.  the Probate division of the California Superior Court is also the forum for Trust lawsuits, conservatorships, power of attorney disputes, and oftentimes guardianships (dealing with minors—although the venue for guardianships can vary from county to county in California).

5.         If a person dies with a Will, does it still require Probate?  Yes.  Wills do not avoid probate.  Probate simply being a process where people can prove the validity of the Will and then ask the Court to start the estate administration process following the terms of the Will.  If a person dies without a Will, probate is also required.  What’s the difference then between having a Will and not having a Will?  While probate is required in both cases, if you have a Will then your estate will pass pursuant to the Will provisions.  And your named executor will act to manage your estate during the probate process.  If you don’t have a Will, then your assets pass per the intestate statutes, which generally follows bloodlines to children first, and then to more distant relatives if there are no children.

So there is a brief recap of five of the most confusing myths and misconceptions about probate.  Do you have a misconception or question you need answers on California probate or trust actions?  Feel free to send me an email at and I will include it in a future blog post on the myths of probate.

Lawyers have rules that we must follow (no, seriously we do), and one of them is that any engagement where we estimate the fees to the client will exceed $1,000 must be documented by a written fee agreement—sometimes called retainer agreement or engagement agreement.  See Bus. & Prof. Code Section 6148.   The California Court of Appeals clarified last year that written fee agreement are not required, however, where an attorney is representing the executor of a probate estate.

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First, let’s sort out who the attorney is, and is not, representing in a probate estate.  Any probate has three potential groups of interested people: (1) the executor (or administrator, both are referred to as the Personal Representative); (2) the beneficiaries; and (3) the creditors of the decedent.

When a client enters my office to discuss a possible probate, they are usually the person named as the executor under a decedent’s Will.  They are asking me to represent them and handle the probate estate; who do I represent?  The answer is I represent the client in his or her capacity as executor.  Technically they are not an executor of the estate yet—not until the Court orders their appointment—but they are the proposed or named executor and that is the capacity in which I would represent them.

More important question: who am I NOT representing?  I do not represent the “estate”—which only exists through an executor—the beneficiaries or the creditors of the decedent.  This is a common misconception, many beneficiaries believe that an attorney for the executor represents the estate and, therefore, also represents the beneficiaries—not true.  The attorney represents the executor, and only the executor.

So why does a lawyer not need a written fee agreement for representing an executor?  According to the California Court of Appeals (in Estate of Dennis Wong) it’s because the client (i.e., the person acting as executor) will not incur any fees whatsoever in the representation.  Therefore, the requirements of Section 6148 are not triggered. 

Let me explain.  Section 6148 states that a written agreement is required whenever the “client” will incur fees in excess of $1,000.  In a probate estate, the executor does not pay the attorneys’ fees, the estate does.  In other words, the executor, as an individual, is never liable for payment of fees—but the estate assets are. 

You can think of the estate as a pool of assets guarded by the Court.  Before the estate is closed, the Court decides who gets paid and by how much.  For attorneys, the fee is set by statute, which is calculated by a percentage of the estate.  And the statute also sets the procedure by which the attorney asks for those fees.  Once granted by the Court, the fees are paid from the pool of assets and the rest is distributed to the estate beneficiaries.

I know what you’re thinking, if the executor is one of the estate beneficiaries, then isn’t the executor paying some portion of the attorneys’ fee?  Well yes, but not directly.  Remember the estate assets are not really assets of the beneficiaries until the very end of the probate process when the assets are distributed out to them.  Before that, the assets belong to the decedent’s estate and the Court has say on who gets paid and how much.  That’s true for creditors too.  But the executor pays nothing from his or her own individual wallet, so Section 6148 is never implicated, so a written fee agreement is not required.

Now that we know that it is perfectly legal NOT to obtain a written fee agreement, should we throw out our engagement agreements?  No.  I have always used written fee agreements even in probate matters, and why not use them?  In my experience, surprising clients about fees is a bad idea (“You owe me $20,000…SURPRISE”).    Better to put it all down in writing up front so there are no surprises down the road.  Each side knows what to expect and knows that the fees will not be paid until ordered by the Court.

For those of you (attorneys and clients alike) not using fee agreements in probate, however, you can no longer be surprised that fees will be paid…it’s just the amount that might catch you off guard.  You’ve been warned.

When do you need to probate the assets of a decedent?  First of all, let’s make sure we know what “probate” means–it sounds like a medical condition.  But in fact it is simply a court process where a decedent’s assets are taken over by an appointed “personal representative”, the last debts and bills of the decedent are paid, and then the assets are eventually distributed to the heirs (if there is no Will) or to the named beneficiaries under the Will. 

Probate only applies to assets that are owned, or titled, in the indiviudal name of the decedent at the time of his or her death.  Probate does NOT apply to things like joint tenancy with right or survivorship, beneficiary designations, pay-on-death accounts or transfer-on-death account, or any assets held in a Trust.  And since a majority of assets are held in one or more of these types of ownership, it can be rare when a probate is actually required.

Further, in California you can pass up to $150,000 of property (not including real estate) without having to open probate.  Instead, you can use an affidavit of small estate, sometimes referred to as a “13100 Declaration” (see a sample 13100 Declaration).  The “13100” refers to Probate Code Section 13100, which governs the transfer of small estates.  For real property, the limit is $50,000 that can pass without probate.  That is a very small number for California real estate (even after the market crash), so real property almost always must be probated if it is held in an individual’s name (and not in joint tenancy) at time of death.

By the way, we often are asked what are “Letters Testamentary” or “Letters of Administration.”  Oftentimes, when a family member tries to wrap up a decedent’s assets, they are told by a bank or financial institution that they need “Letters Testamentary” or “Letters of Administration.”  Those are not letters drafted by lawyers, they’re not letters at all in the modern usage of that term.  Rather, they are documents issued by the Court AFTER a probate has been opened and the Court has signed the order appointing the personal representative (the term “personal representative” is a catchall phrase that includes both Executors (who are named under Wills) and Administrators (that same thing as an Exeuctor except for estates where there is NO Will)).

The Answer: where a decedent dies owning assets in his or her own, individual name worth more than $150,000 (not included real estate), then you need to open probate to transfer the decedent’s assets to the heirs or beneficiaries under the Will.  If the decedent owned real property worth more than $50,000 in his or her own name, then off to probate you must go.

You can see a few of our aticles about the probate process here

The probate process is probably one of the most archaic procedures we still have in our legal system.  Probate simply means to prove-up a Will—it’s the process where a Will is determined to be valid by the Court, it is then “admitted” to probate (as we say), an Executor is appointed and the administration of the decedent’s assets begins.

Probate also applies where there is no Will, then the Court determines that no valid Will exists, an Administrator is appointed, and the administration of the decedent’s assets begins.

Sounds pretty straightforward, until you run face-first into the procedural wall of probate.  There have been many times when I have been asked by non-lawyers “can I do the probate myself?”  My response is: yes.  This is America, anyone can represent themselves in Court—for the most part.  There are a few exceptions to that rule, but a simple, uncontested probate can be handled by the Executor.  All you need to do is know all the rules, procedures, and arcane terms of probate…well maybe its not so simple after all.

In fact, there are plenty of lawyers who have a hard time navigating the probate process.  The rules that have been established over many centuries (yes, some of our probate laws/rules are that old) are not intuitive to understand.  And if you don’t comply with the process, then your probate dies a slow death in Probate Court.

But still, it’s not impossible.  It just takes a good amount of homework and an extra large dose of patience.  And every probate can be broken down in three main parts (1) Starting the probate process, (2) administering the estate, and (3) closing the estate.

1.         Starting probate.  To start a California probate you have to file a petition with the Court.  A petition is just a way of asking the Court to do something—in this case it’s to open a probate.  There are other forms that go along with the petition too.  Once you prepare the petition, you file it with the Court and the Court will give you an initial hearing date for sometime in the future.  Once you have that date, you have to serve Notice of Hearing on all persons named in the Will AND all heirs at law.  You also have to publish notice of the probate in the newspaper before the hearing date. 

If all goes well and your papers are in order, then the Court will grant the petition, sign the Order opening probate, and issue Letters (either Letters Testamentary for an estate with a Will, or Letter of Administration for intestate estates (that’s estate’s with no Will)). 

See my video on how to prepare a Petition for Probate.  We also have a post with links to all necessary (well most necessary anyway) probate forms.   

2.         Administering the estate.  Once the California probate estate is opened all estate assets must be gathered and inventoried and appraised.  All cash can be appraised by the Executor, but any other assets, such as stocks, bonds, real estate, etc. must be appraised by the Court appointed probate referee.

Creditor’s of the decedent must be noticed, property sold or positioned for distribution, and any estate bills paid.  If someone claims to be a creditor, but the Executor believes the claim to be invalid, then there may be a lawsuit to determine which claims are appropriate to be paid.

Once all creditor’s are paid and assets are either sold or positioned for distribution, its time to close the estate.

3.         Closing the estate.  The final petition that must be filed in a California probate is a report by the Personal Representative, which usually includes an accounting of the estate assets and a request to distribute the estate assets to the appropriate heirs.

The estate accounting is the trickiest part of this equation because it must be prepared in a manner that complies with Probate Code Section 1060 et seq.  And an estate accounting is unlike any other type of accounting.  So you have to find someone who knows how to properly prepare this type of accounting.

The final petition also asks for compensation to be paid to the Executor and the estate’s attorney.  Both the Executor and the attorney are entitled to the same fee, which is a sliding scale percentage of the estate’s value.  The fee equals:

4% of the first $100,000 of value               $4,000

3% of the next $100,000 of value              $3,000

2% of the next $800,000 of value              $16,000

1% of all amounts up to $5 million             $50,000

Most probate estates are not $5 million in value.  However, a typical estate worth $500,000 would result in a fee to the Executor of $13,000.  The estate’s attorney would receive the same amount, $13,000.

Navigating your way through the California probate process is not impossible, its just time-consuming and, at times, frustrating.  But take a deep breath and see what you can do.  If all else fails, you can always hire an attorney to take the probate to the finish line.

In an earlier post we described what probate is and that it only applies to assets titled in the name of the decedent at the time of her death.  Now we want to discuss how to start the probate process (it’s just a court process after all).

Handling a California probate can be summed up in one word–procedure.  It is a procedural monster that requires strict compliance with the rules of probate.  Some of the rules are easy to find and others are not, but complying with the rules is the only way to successfully navigate a probate.

Probate starts with a “Petition for Probate”.  A Petition is just a document that starts the ball rolling by asking the court for relief.  Here, in California, the Petition for Probate (Form DE-111) is meant to ask the Court to accept the decedent’s Will as being a good and valid Will and appoint an executor to act as the decedent’s personal representative (if there is no Will then the personal representative is referred to as the Administrator rather than Executor). 

The good news is that the Petition for Probate is a form document. The bad news is that it’s not as easy to prepare correctly as one might think when first looking it over. But it’s not too difficult either once you understand the process a bit better.  The key to the initial petition is to read each section carefully and mark all sections that apply.

And you will need a few other forms as well: such as the Duties and Liability of the Personal Representative, Letters, Order, Notice of Petition to Administer Estate, and Confidential Supplement.  (See our prior post listing many probate forms.)  There may be a local form or two that each local court of a particular California county requires.  This varies by location and you should check with your local court for any filing instructions—or check the court’s website where they typically list local forms. 

DISCLAIMER: We are not intending to provide you with legal advice in this blog, we are only presenting general information relating to probate procedure.  Every case may vary based on the facts and circumstances of your particular case.  You should always discuss your case with a California lawyer before filing a probate in California.

Probate is an antiquated term that simply means to prove-up a decedent’s Will.  It is a Court process where a decedent’s assets are gathered, creditors are paid, heirs are identified and located, and the assets distributed either according to the decedent’s Will or by statute if a decedent died without a Will (referred to as “intestate” distribution).

The probate process is centuries old and requires compliance with a strict set of procedural rules in order to start the process, administer the process and, ultimately, close the process successfully  (see our list of California Probate Forms).  The irony is that there are so few, if any, procedural hurdles for assets that pass outside the probate process.

For instance, in California, probate only applies to assets titled in the name of the decedent alone at the time of her death.  Many assets pass outside of probate (we refer to these as “non-probate assets”), such as assets that are held in joint tenancy (with right of survivorship), assets passing by beneficiary designations (such as life insurance and bank accounts) and of course assets held in a Trust.

The problem arises when an asset held in joint tenancy, for example, passes differently from the assets passing under a decedent’s California Will.  The Will may say all assets pass equally to the decedent’s children, but if an asset is held in joint tenancy with just one child, then that one child takes the asset regardless of the Will.  In other words, the Will does not control, or in any way affect, assets passing outside of probate.  This is an important point and may be surprising news for some people.

Another common misconception is that if someone dies without a California Will or Trust their assets pass to the State of California.  Not true.  Under California law, there is a scheme set up by State law that provides for the distribution of a decedent’s assets to their heirs at law if they die without a will.  Heirs at law include the decedent’s spouse, children, parents, brothers and sisters and even nieces and nephews, at times.

If you find that a decedent has died and there are assets subject to probate, either under a Will or without a Will, then it’s time to start the probate process.  That’s the subject of another blog post.