The period following a loved one’s death can be very painful and confusing. Often times, it also happens that family members have very different ideas about the deceased’s final wishes. The repercussions of this can be overwhelming; they also merit the obtaining of solid legal assistance. This is why there’s a category of law designed specifically to address these types of issues: probate law. Let’s discuss what probate law is… and isn’t.
What is Probate Law?
Probate law and the probate process interpret the instructions of the deceased party — via their will — and administrate the distribution of the deceased person’s estate accordingly. The probate period typically takes several months and is subject to both court and attorney costs.
Central to this formal, legal process is the procedure whereby the will of the deceased is “proved to be valid.” Once this critical requirement has been fulfilled, the deceased’s property and assets can then be retitled and transferred to the beneficiaries of the will.
An obvious question is, “What if the deceased did not construct a will?” In this case, beneficiaries are designated by state law.
Technical Aspects of Probate Law
Below are a few of the more technical aspects which comprise probate law:
Requires publication of legal notices. All creditors be notified at time of death.
Ensures creditors / remaining debts are paid (prior to distribution of deceased’s assets to individuals in will).
Determines an executor of the deceased’s will.
Institutes various regulations, including time constraints (i.e. time frames for filing and objecting to claims against the estate).
Evaluates the estate’s remaining tax obligations.
Misconceptions of Probate Law
The probate process is already complex enough, so avoid complicating it further by making decisions based on falsely held assumptions. Here are some common ones balanced by realities:
“I have to go through the probate process, there’s no getting around it.”
False: This process can be avoided through mechanisms such as living trusts.
“Once the courts get involved, I have no control over what happens next.”
False: Parties may challenge any aspect of probate law, including the validity of the will, status of the person serving as the deceased’s personal representative (i.e. executor/ executrix.) or whether the personal representative is properly administering the estate.
“Once the deceased determines their personal representative, that decision is final.”
False: Beneficiaries or heirs have the option of objecting to the personal representative named in the deceased’s will. When this occurs, a trial is usually held. During trial, objectors can offer evidence / testimony to convince the judge to overturn a will’s provisions.
The information above is intended as a brief primer on the often-times obscure workings of probate law. For an in-depth consultation regarding your specific situation contact Peter Wittlin via PeterWittlin.com today.
Sources:
The real estate sector is very sensitive and should be treated as such. Engage the services of a real estate attorney for assured peace of mind.
As a bankruptcy attorney, I’ve represented many clients in obtaining relief from debt. Here are your options in Bankruptcy Court:
Defining Bankruptcy
Bankruptcy is a federal court procedure (done in Santa Ana, LA, or Riverside), which enables consumers and/or businesses to rid themselves of all, or substantially reduce, their unsecured debt, and extend the time to pay past due secured debt. Unsecured debt is generally consumer credit card debt and medical bills, whereas secured debt is mortgage debt on your home or other realty, and against your car(s).
Chapter 7:
This is called “liquidation,” i.e., whatever assets you have which are not exempt from creditors (most assets are exempt so you keep them), are given to the chapter 7 trustee to sell and distribute any net sale proceeds to your creditors pro rata. Chapter 7 is good for you to extinguish your unsecured debt, and is recommended if you (husband & wife) have less than $100,000 equity in your home (less than $75,000 equity for individuals, and less than $175,000 for debtors 65 years or older) so you keep your home. Chapter 7 is available to you every 8 years.
In a Chapter 7 case, if you have mortgage (secured) debt on your home or cars, you’ll generally have to pay it as it becomes due. You may be able to extinguish certain back income taxes owing to the IRS or to the FTB if they are for taxable years for which the last day to pay them is at least 3 years before you file your Chapter 7 bankruptcy petition.
The attorney’s fees you pay for a Chapter 7 range from about $1,800 to $2,500, but may be more depending on how much work special work your attorney may be required to do, e.g., to reaffirm debt, dealing with tax claims or student loans, opposing adversary actions by creditors (rare).
Chapter 13:
This is called “individual debt readjustment, i.e., you keep all of your assets, including your home regardless of its equity, provided you pay over 36 to 60 months all of your “net disposable income” after household expenses to the chapter 13 trustee toward satisfying unsecured creditors and to cure the arrears owing to your lenders on your home and cars. Whatever your monthly payment is to the Chapter 13 trustee, you add 11% to cover his operating expenses.
Chapter 13 can save your home from foreclosure, and hence is generally the reason to select it over Chapter 7. Filing a Chapter 13 will automatically stop any threatened foreclosure sale of your home. (A Chapter 7 filing would do that, but a threatened foreclosure sale can be renoticed, but not in a pending chapter 13 case.)
Chapter 13 is available only to individuals (husband and wife, included), whose combined unsecured debt does not exceed $394,725, nor secured debt exceed $1,184,200 (as of Year 2017). (These figures tend to increase some every year.)
The attorney’s fees you pay for a Chapter 13 are generally $4,000 to $5,000, depending upon the number of unsecured and secured creditors, and also how much work the attorney may have to do to have your Plan approved by the Court. Such fees may be payable over time to the attorney, rather than all “upfront.”
Chapter 11:
This is called “reorganization.” It is available to individuals whose assets
exceed the Chapter 13 ceiling, and to partnerships, LLCs, and corporations, who want to stay in business and preserve their assets, but need time to pay off unsecured and secured debt. Unsecured creditors must receive what they would receive in a chapter 7 liquidation.
The attorney’s fees for Chapter 11 generally run in the five figures, i.e., $20,000 or more, depending upon the amount of work needed to have a Chapter 11 Reorganization Plan approved by the Court. Chapter 11’s are “paper-intensive,” requiring periodic written accountings and disclosures of business operations, but if done correctly can save your business from a forced chapter 7 liquidation.
Which Bankruptcy Option is Best for you?
While this article serves as a helpful overview of your bankruptcy options, tailoring my legal advice to your specific financial situation is best done in person.
Disclaimer: The information in this article by Attorney, Pete Wittlin, is for promotional purposes only, and should not be relied upon without your firstly consulting with learned bankruptcy counsel familiar with your particular financial situation.
Whether you are a debtor or creditor, it is most advisable that you not represent yourself in Bankruptcy Court, but hire an experienced bankruptcy attorney so to do. It has been said that, “Anyone who represents himself in court has a fool for a client, and a jackass for an attorney.” So with that chuckle, be so aware.
For more information, concerns or clarification, please contact Attorney, Peter C. Wittlin, at pwittlin@gmail.com or (949) 430-6366.
About Grandfathering a 2nd Short-Term Rental Unit in Sunset Beach
July 7th, 2021
Question: I own and occupy a 3-bedroom home in Sunset Beach to which is attached a 2-bedroom flat I have historically rented out short-term (30 days or less). Since the January 19, 2021 adoption by the city of Huntington Beach (which annexed sunset beach) of its STR Ordinance 4224, I have applied to the city for STR permits for both my home and the 2-bedroom flat. However, the City is denying my application for the 2-bedroom flat on the grounds that its ordinance allows for one rental unit per owner, not more.
I want to have “grandfathered” in my historical use of the 2-bedroom flat to be exempt from the ordinance’s “one unit per owner” limitation. What are my rights?
Answer: On page 35 of the January 2017 Sunset Beach Specific Plan (SBSP), then adopted by the city of Huntington Beach, it provides that a then-existing short-term rental unit (your 2-bedroom flat ) shall be discontinued 12 months after the Cal Coastal Commission adopts a development plan unless within such time the applicant applies to the city for an STR permit. So, assuming the Commission adopted its development plan effective January 19, 2021, you have 12 months thereafter within which to apply to the city for an STR permit for your 2-bedroom flat in addition to applying for an STR permit for your home proper.
Your permit application for your 2-bedroom flat must indicate that it is exempt from the one unit per owner rule by virtue of the City’s January 2017 adoption of the SBSP which on page 35 granted you up to 12 months’ time to apply for such a second STR permit.
If despite your “grandfathered in” permit application, the City refuses to grant you an STR permit under its “one owner, one permit” rule, you may have legal recourse in court by adept legal counsel against the city for an administrative writ of mandate to compel the city to exercise its discretion fairly and not arbitrarily or capriciously, to grant you your requested permit. Its Ordinance 4224 does not expressly remove the City’s 2017 SBSP grandfathering in language for a second unit. If you so go to court, you may be able to recover your attorney’s fees as well.
Disclaimer: This article is intended for general educational purposes only and its contents should not be used except by a competent attorney familiar with the facts of your case. Attorney Pete Wittlin may be reached at (949) 430-6366 and at pwittlin@gmail.com.
July 8th, 2021
Question: Five years ago I ceased paying back my debt on a particular credit card. Thereafter I heard nothing from the creditor, other than to learn that it had “written off” its claim when I saw that on my credit report. I just got sued by a collection company on the claim, which now has considerably increased the amount due to annual 10% interest. Someone told me that old debts can’t be sued upon due to the “statue of limitations.” What should I do with the summons and complaint that I just received?
Answer: First of all, it’s true that old debts may become unenforceable due to the passage of time, i.e., barred by the 4-year statute of limitations. (It’s a rule, not a monument!) Don’t feel bad: many people call it a “statue,” mispronouncing or misspelling it. That the claim was “written off” by the creditor may be no defense for you, for there probably was no consideration you paid for that concession. It’s best if you have an attorney deliver a letter to the collection agency, arguing that suit against you was filed too late, i.e., more than 4 years after the first day you failed to make your last monthly payment on the account. The attorney’s letter ought to demand that he or she receive a copy of the credit card contract upon which the claim is being made: oftentimes the collection agency never received it from the creditor, and the creditor no longer has it or can’t find it, so there’s no agreement in evidence to enforce! If it was a company credit card, there’s no record you ever signed it or guaranteed to pay the company’s obligation. Or the collection agency doesn’t have a copy of the creditor’s record of payments received on account, so the collection agency can’t prove that your breach occurred within four years before the suit was filed against you.
If the suing credit card agency’s attorney won’t dismiss the case, your good attorney may be able successfully to demur to the complaint, to contend that it is defective on its face for failing to attach a legible copy of the contract to it, or that the complaint itself says the date of breach was more than four years before the case was filed. If the credit card agency can’t amend the complaint to correct such defect or defects, the court will sustain your demurrer without leave to amend, i.e., dismiss the case against you. You’ve successfully used the statue, – I mean the statute, of limitations to defeat the belated claim against you, i.e., the rule of law, not a pile of bricks.
Disclaimer: This article is intended for general educational purposes only and its contents should not be used except by a competent attorney familiar with the facts of your case. Attorney Pete Wittlin may be reached at (949) 430-6366 and at pwittlin@gmail.com.
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