Probate Hack – Spousal Property Petition

If a Spouse dies and there is a financial account or real property still in the name of the deceased spouse, and no succession mechanism was established or is otherwise available, the surviving Spouse can petition the Probate Court for a one time hearing with a Spousal Property Petition (avoiding the full Probate Court Estate Administration process.)

In most cases, the surviving Spouse will have to establish that the deceased Spouse’s property was community (marital property) as opposed to separate property.

The Spousal property petition is only available for the surviving Spouse or Domestic partner. It is not available for the surviving children, other relative, or other interested parties.


Probate Hack – Remove Power of Attorney

If a family member, friend, or third party acting as power of attorney (agent) fails to act in the best interest of the principal (person delegating authority to the agent), there is the option to bring the matter to a judge in Probate Court under Probate Code Sections 4541 and 4545, forcing the removal of the Power of Attorney who is breaching his or her fiduciary duties.

In addition to the removal of the power of attorney, the petitioning party can ask that the Court to order an accounting, recognize a new successor power of attorney, and compel the removed bad faith power of attorney to pay the petitioning party’s court related attorney fees.

Having a specific determination on the Power of Attorney is less complicated and costly than instituting a conservatorship.


Who Inherits if No Trust or Will?

If a person dies in California without a Trust or Will, then Probate Code Sections 6400-6455, intestate succession, dictates the succession disposition.

The attached Chart of Consanguinity details the various scenarios whereby the offspring of a predeceased direct bloodline relative can inherit by “right of representation.”

For example, the parents have two children, and one of the children predeceased, leaving two grandchildren. Under the California Probate Code, the two grandchildren are entitled to receive in equal shares the 50% of the pre-deceased parent child. The surviving grandchildren inherit 25% each.

In a situation where a single person has no direct bloodline and has an extended family with many cousins, who have offspring, the benefits of having a Trust or Will explicitly stating who will receive, will prevent the cost and burden of a Probate Administration leaving it to distant relatives that the decedent may not have known existed.

Court Probate of Intestate Administration for a deceased without a Trust or Will, can result in large Heir Search Vendor costs. This can be prevented by having a valid written Estate Plan, a Trust or a Will.


Tip for Property Buyers

When seeking to purchase a residential property, most will engage a licensed Real Estate agent.

An initial crucial decision will be the listing (sale) price.

The agent owes the seller a fiduciary duty to act in the seller’s best interest.

The agent receives a commission as long as the agent successfully finds a prospective buyer that meets the listing price.

Generally, if there is a willing buyer for the listing price, the seller is obligated to pay the commission, irrespective of the seller’s decision to later terminate the agent or the deal, or if the seller hires a new agent.

In this context, one most beware of the possibility that the agent may set the listing price too low, ensuring the commission and an expedited sale.

The agent fears a high listing price without a buyer and no commission.

While it is prudent to set a realistic price, the agent still owes a fiduciary duty to obtain the best possible deal, this usually means the best possible market price.

So don’t be too quick to agree to the agent’s recommended listing price.


The Pitfalls of Re-Financing California Real Estate

Re-financing Real Property has increased lately due to low interest rates.

Sometimes a borrower will need to add a third party in order to qualify for the loan.

This could be parent or other third party (e.g. brother, uncle, or in-law).

If the co-signor is not an exempt spouse or child, the borrower risks a partial property tax increase.

It is well advised to consult an attorney to confirm whether the situation possess a risk of tax re-assessment.

Under the right circumstances, the attorney can help the borrower avoid any tax increase, even if the co-signor is a non-exempt individual, such as a parent or grand parent.

For more information, please contact the Law Offices of Hanlen J. Chang.