Janet Lee Brewer's Answers

Do we need to open an estate account?

I'm sorry about your father's death. The whole purpose of Probate Code section 13100 (the small estates procedure) is to avoid having to open a probate. You are correct that the limit as of 1/1/2012 for using the small estates procedure is $150,000. See: http://leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13100-13116 Unless you open a formal probate, I believe you will have considerable difficulty opening an estate account - if you try, the bank will most...

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Who costs more, an atty for the estate or an atty for the trustee?

In California an executor would be entitled to $9,000 as "fees for ordinary services" in a probate. If the executor performed any "extraordinary" services s/he would be able to petition the court to be paid for those services in addition to the $9,000. The Court will usually approve extraordinary fees based on the number of hours spent at a rate of $35 to $125 per hour. In some circumstances, the Court will approve a higher hourly rate. A trustee usually charges a minimum fee of $5,000...

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What do I do if witnesses to my father's will cannot be located after 20 yrs to sign declaration of perjury for the Probate Cour

California Probate Code section 8221 provides that a will can be proved by proof of the testator's handwriting and proof of the handwriting of one of the witnesses. If you cannot prove the handwriting of one of the witnesses, you can submit an affidavit of a person with personal knowledge of the circumstances of the execution. You may need to do a little detective work to find the witnesses or the attorney who drafted the will. If you know the name of the lawyer who drafted the will, check...

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What is included in the estate for purposes of calculating maximum probate fees in California?

That is correct, as far as it goes. The problem is: what happens when the second person dies? If the house and the bank account are not held in a trust, then when the second owner dies, $900,000 is subject to probate. And before you ask - it's usually a very bad idea to add a non-spouse (or non-domestic partner) as a joint tenant ... if that other person has any debtor/creditor problems, for example, then the creditor can seize the account or in some cases even force the sale of the house....

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Does the beneficiary of a trust have a right to see the 1041 tax return for the trust?

The beneficiary usually has the right to an annual "accounting". If you've been provided with a balance sheet (statement of assets and liabilities) and an income statement (statement of income and expenses), then the trustee would not need to show you the 1041. However, you would have the right to receive (and definitely should so you can file your own tax return accurately!) a "K-1" form for your share of the income and expenses.

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How do I find a deceased person's will in CA? There was an attorney but the estate was never probated.

As Mr. Staub suggests, your best bet might be to contact the bar association in the county where the husband and wife resided. Ask them to send an email to members about whether any of them prepared a will for these people. If the will wasn't probated and it was not "lodged" with the probate court, I'm afraid you may not have any luck finding the document. Depending on a number of factors, including how many years elapsed between the husband's and the wife's deaths and whether either...

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Are beneficiaries allowed to be witnesses to the signing of a living trust?

You appear to be mixing apples and oranges. A will is witnessed; usually a trust is notarized. This sounds like it was a "do-it-yourself" job; I can't imagine any competent lawyer would let a beneficiary's husband and daughter be witnesses to a will. It raises too many issues. California probate code section 6112 states that just because a witness is "interested" in the will does not automatically make the will invalid, but it does create a strong presumption that duress, undue...

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Estate/probate

I agree with Mr. Buckingham. If the apartment complex refuses to accept an affidavit under section 13100 (a "small estates affidavit"), you can take them to court to force them to accept it. If the Judge determines that their refusal to accept it is "unreasonable", they will be required to pay both your court costs and your attorney's fees. Usually if you let the company know that they'll be paying your fees, they become much easier to deal with.

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I am inheriting my mothers house.How much value will be tax free?

There are several tax issues here: property taxes (Prop. 13), income taxes (capital gains) and estate taxes. For property tax purposes, you can keep the same property tax as your mother is paying IF this is her principal residence. If it is a rental property, then you can keep the same property taxes on the first $1 million of value. In order to keep the property taxes the same, though, you will need to file a "Proposition 58 Parent-Child Reassessment Exclusion" form with the county...

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Will the county assessed property tax remain same on my elderly mom's house if she gives the property to me before she dies?

I agree with Mr. Bergman. It could be very foolish if your mother gifts you the property just to save property taxes and you end up having a low income tax basis on it. Your mother can leave you the property under a will or a trust and you can still keep the low property tax basis - but since you will have inherited the property, your income tax basis readjusts (saving you income taxes if you ever sell the property). Assuming that the house is worth more than $150,000 it makes more sense...

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