Mar
08
2018
0

What Assets Can Be Administered By The Probate Court When The Decedent’s Will Is Filed?

Only certain assets left through a person’s will can be administered through a probate proceeding.

For a married person, all of his or her separate property, which is in that person’s name alone, can be distributed through a probate court proceeding. Separate property is identified as what was owned by the decedent before marriage. In addition, separate property refers to assets acquired during marriage by gift or inheritance. If the decedent is single, all assets in the decedent’s name alone can be distributed through a probate proceeding. For community property, one-half of each asset which is titled in the couple’s names as community property can be handled through the probate court process. In addition, the portion or percent owned by the decedent with others as tenants in common can be subject to the probate court process. Assets that are not registered in the decedent’s name, such as furniture, coins and jewelry can also be distributed through probate.

This information is not to be taken as legal advice, is general in nature, and you are encouraged to see your Walnut Creek Probate Attorney.

Michael J. Young

Walnut Creek, CA Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Feb
07
2018
0

The Personal Representative of the Probate Estate

When a probate is filed, the court will appoint a Personal Representative of the estate. This personal representative will be identified in the court proceeding as the executor or administrator of the estate. This person will sign and file the various documents that will be required by the court through the course of the probate proceeding. If there is a will naming an executor, the court will most likely name that individual as the executor of the estate. If there is no will, then the surviving spouse, the children of the decedent, parents, etc., can petition the court to be named as the “Administrator With Will Annexed.” The term “administrator” is also used when a person dies without leaving a will which would name an executor. If the executor named in the will has died or cannot serve for some reason, the court will appoint an administrator. If a former spouse is named in the decedent’s will as the executor, and there has since been a divorce, Probate Code § 6122 prevents the former spouse from serving as executor.

This information is not to be taken as legal advice, and you are encouraged to see Michael J. Yung, your Walnut Creek Probate Attorney.

Michael J. Young

Walnut Creek Elder Law Probate Attorney

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

www.WalnutCreekElderLaw.com

Jun
05
2012
0

Probate – Joint Tenancy Transfer Without Probate

Real property held in joint tenancy can be transferred upon the death of one of the owners of the property without a probate. However, this is not always a good idea.

For instance, lets assume that John Doe is the owner of 123 Wilkins St., and John Doe wants his friend Jim Smith to obtain title to the property upon John Doe’s death. This can be accomplished by John Doe granting the property with the use of a Grant Deed to himslef, John Doe and to Jim Smith, as joint tenants. Upon the death of one of the parties, an affidavit death of joint tenant with a death certificate attached is recorded with the county recorder. The survivor of the two individuals will now have sole title to the property. No probate is necessary. A probate will be necessary on the second death if nothing else is done.

This method of estate planning can avoid probate, but can create other issues. We have seen situations where parents have transferred their home to their children for government benefits planning and asset protection purposes. For Medi-Cal, the home can be established as an exempt asset and then transferred. But what happens if the child who has come onto title is having financial difficulties? If there is an abstract of judgment in the amount of $100,000 recorded with the county recorder against the child who is now on title, the lien created by the abstract of judgment in the amount of $100,000 has now attached to the parents’ home. This is not a good result.

A better method may be for the parents to create a revocable living trust in their names, and then transfer the property on the record to the trustees of the trust. Upon the passing of both spouses, the property should pass to the children without a probate and court involvement.

For government benefits planning and asset protection purposes, an elder law attorney such as Michael J. Young, probate and elder law attorney in Walnut Creek, CA, Contra Costa County, can draft the trust and related financial durable powers of attorney in such a way as to allow for intervivos, or lifetime transfers of real proprty between spouses and children, if necessary in the event of incapacity.

Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney

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