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Sample Ex Parte Petition for Approval of Personal Representative’s Acts in Probate

The following is an Sample Ex Parte Petition for Approval of a Personal Representative’s Acts designed for a California Probate, particularly Los Angeles County.

Specifically, the sample Petition to Approve Acts is for a situation where a Probate has been commenced, and the Personal Representative seeks to utilize a Small Estate Affidavit Procedure, but it denied by the institution holding decedent’s funds. This is an actual Petition used to get approval and an Order from the Probate Code compelling the institution holding the Decedent’s funds to comply with the Small Estate Affidavit Procedure.

Click here to download a copy of the Petition, or you can view it below.

Alex Avakian, Esq.
State Bar No. 269039
Glendale, CA 91226

Attorney for Petitioner

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

     Petitioner, alleges as follows:

1. The decedent died on May 20, 2004, a resident of Los Angeles County, California.

2. Letters for Administration were granted on June 16, 2011 naming the Petitioner, Petitioner, as Personal Representative of the estate. Both Letters and the Personal Representative remain in good standing.

3. Petitioner is the decedent’s mother and only beneficiary.

4. The sole asset of the estate was a 20% ownership interest in real property located in Los Angeles, California.

5. Special Letters of Administration were issued on May 13, 2011, with strict orders allowing Petitioner to sell the real property with the proceeds remaining in escrow with the escrow company until an order from the probate court was issued instructing release of said funds.

6. Upon the sale of the real property, and after deducting escrow fees, a net of $70,835.03 remains and is currently being held in escrow by the escrow company, ABC Escrow.

7. An Inventory and Appraisal was filed on July 17, 2011 listing the escrow account as the sole asset, valued at $70,835.03.

8. Petitioner then filed a Petition for Preliminary Distribution on May 30, 2011.

9. Upon review and before the Preliminary Distribution Hearing Date, the Probate Notes by the Probate Referee suggested that instead of a Preliminary Distribution, Petitioner should utilize a California Probate Code 13100 (Small Estate Affidavit) procedure to collect funds from ABC Escrow and then file a petition to terminate further proceedings under California Probate Code 12251.

10. Petitioner then requested and the probate attorney granted a request to take the Preliminary Distribution Hearing off-calendar.

11. Petitioner then wrote a letter to ABC Escrow explaining the situation, a 13100 Small Estate Procedure, along with the required documents for a valid Small Estate Affidavit.

12. ABC Escrow subsequently refused to release funds, stating that the only official court document which permitted them to act in the first place was under the condition that the funds be held in escrow. Understandably, ABC Escrow is reluctant to release the funds without an order from the probate court.

13. As this is the sole asset of an estate that is over 11 years old with no creditors and one beneficiary, the Personal Representative, Petitioner believes that the Probate Referee’s recommendation is the most efficient and appropriate manner in which to conclude this probate.

14. Petitioner knows of no opposition to this petition.

15. Petitioner is proceeding with an Ex Parte Petition due to the fact that Petitioner is in need of the funds held in escrow in order to conclude her own debt restructuring plan. Petitioner remains under great pressure from her own creditors and is desperate to gain access to said funds in order to finally complete her debt restructuring plan and to allow her to move on with her life.

 

WHEREFORE, Petitioner prays for an order of this court as follows:

1. For an Order approving the acts of the Personal Representative in using a California Probate Code 13100 Small Estate Affidavit Procedure;

2. For an Order directing ABC Escrow to release $70,835.03 held in escrow under the name of the decedent to the Petitioner;

3. And for such other relief as the court deems proper.

_______________

Dated

 

_______________________

Signature of Attorney for Personal Representative

 

VERIFICATION

I am the Petitioner in this action. I have read the foregoing petition and it is true of my own knowledge, except as to those matters stated on information or belief, and as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

____________________________________________________

Date and place of execution

 

_______________________

Signature of Personal Representative

 

ORDER

     1. ABC Escrow is directed to release $70,835.03 in funds held in escrow for the Decedent, to the Petitioner, using a Small Estate Affidavit Procedure, California Probate Code 13100.

 

__________________                         ___________________________

Dated                                                 Judge of the Superior Court

How to Transfer Real Property into a Living Trust via Grant Deed

This page will provide you with information on how to transfer your real property into a Living Trust using a Grant Deed.

1-First, you must create a properly executed Living Trust.

 

2-Draft a Grant Deed with your personalized information. This will include you property address, APN (Assessor’s Parcel Number), Name of your Trust and it’s date, and a legal description of your property. A legal description can usually be found in your home purchase documents.

See below for a Sample Grant Deed – below the sample you will find sample grant deed trust documents you can download and edit.

RECORDING REQUESTED BY:

Alex Avakian, Esq.

APN: XXXXX

 

GRANT DEED

(Excluded from Reappraisal under California Constitution Article 13A – 1 et seq.)

The Undersigned Grantor(s) declare(s): DOCUMENTARY TRANSFER TAX $0; CITY TRANSFER TAX $0.

THERE IS NO CONSIDERATION FOR THIS TRANSFER.

There is no Documentary transfer tax due. This is a Trust Transfer under Section 62(d) of the Revenue and Taxation Code: Transfer to a revocable trust. This conveyance transfers an interest into or out of a Living Trust, R & T 11930.

FOR A VALUABLE CONSIDERATION, receipt of which is acknowledged,

        Client and Clientess, Husband and Wife as Joint Tenants

do GRANT to

Client and Clientess (and their successors in interest) as Trustees of THE CLIENT FAMILY LIVING TRUST dated August 31, 2011

the real property in the City of Los Angeles, County of Los Angeles, State of California, described as:

Attached hereto as Exhibit A.

        Commonly known as: 743 Evergreen Terrace, Los Angeles, CA 90210

Assessor’s Parcel Number: XXX

 

The parties each acknowledge that this is a transmutation of both Client’s and Clientess’ separate and/or community property interest in the above-described real property, commonly known as 743 Evergreen Terrace, Los Angeles, CA 90210, into community property shared between Client and Clientess.

 

Dated:

Client signature

Clientess’ signature

 

CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC

 

STATE OF CALIFORNIA                                    )
COUNTY OF ________________________)

On __________________ before me, _________________________________________ (here insert name and title of the officer), personally appeared

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________,

who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 

 

_______________________________                                                 (Notary Public Seal)
Notary Public Signature

 

Exhibit “A”

Legal Description

 

The real property in the city of Los Angeles, County of Los Angeles, State of California, described as:

Lot XXX in Tract No. XXXXX as per Map recorded in Book XXXX, Pages XX to XX inclusive of Maps, in the Office of the County Recorder of Los Angeles County, California.

Click here for a Sample Grant Deed to place Property into a Living Trust in .pdf format.

Click here for the same document in .doc (Word) format which is editable.

 

3-Once the document is completed, you will need to sign, date, and notarize it. Please note, the sample document is for a married couple placing property into a family trust. However it can be easily modified for a single person.

 

4-File the completed Grant Deed along with a PCOR (Preliminary Change of Ownership Report) with your County Recorder. Click here for more information on how to complete a PCOR. Note – This document is customized for Los Angeles County – Thus it might not work in a different county.

 

5-There is a filing fee for recording such a document – The fee is based on the number of pages. Fees vary, check with your county – but it should not run more than $30-$40.

 

6-Wait about 3-4 weeks for the document to be recorded and sent back to you. And Done!

How to Write Your Own Will in California

The following is a list of requirements in order to make sure a will is valid in California. Please note that these requirements are not for a “holographic” will, which is a specific type of will that is seldom used in a modern day estate plan as it is ripe for fraud and future complications. In order for a will to be valid in California, it must comply with the following requirements:

1. You must be at least 18 years old to draft your own will.

2. The will must be written (either handwritten or typed on a computer and printed).

3. You must be of sound mind (mentally competent). The Probate Code does not define what mentally competent means, but it does state that an individual is not mentally competent to make a will if they lack mental capacity to understand the nature of a will, if the individual suffers from mental disorders, or the individual is unable to remember or understand their relations to living relatives/family. For more detailed information on “sound mind”, please refer to Probate Code Section 6100.5

4. A will can dispose of property located anywhere in the world, not only within the United States or your respective state. 

5. A will cannot be formed under duress, menace, fraud, or undue influence. Meaning the drafter must not be pressured by a family member or other interested party when writing and signing the will.

6. The will must be signed by the drafter. The will may be signed on the drafter’s behalf if the drafter is unable to physically sign, and the drafter instructs the individual to sign on his or her behalf in the drafter’s presence. 

7. The will should be dated on the date of signature. 

8. The signature of a will should be witnessed by two non-interested parties. Meaning the two people witnessing the signing should be friends or people that know you, and they should watch you sign the will while all 3 of you are in the room. The witnesses should then sign and date the will themselves as “witnesses”. The witnesses may must be non-interested parties, meaning they cannot be your family members or any people that have or can potentially have an interest in your will or estate. Neighbors are usually good “witnesses” to use. 

9. A will does not need to be notarized. 

10. Include language as to how you want your assets to be distributed upon your passing. 

11. State who you want to be your Will’s Executor. An Executor is the person listed in a will who is responsible for carrying out the actions of the will and for properly handling a probate procedure and distributing property. Make sure this is an individual you trust, can handle finances responsibly, and lives within close vicinity. 

12. If you have minor children, state who is to be nominated Guardian should you pass before your children reach the age of maturity (18 in California). A Guardian is responsible for handling the financial and logistical needs of a minor child. 

13. State that a bond is waived for ay executor who serves under your will. A bond is a surety that is required by law (unless waived) when a probate proceeding is commences. This is a costly procedure that can easily be avoided with a simple waiver in a will. 

14. If there are parties that you wish to disinherit, specifically name them (such as a natural son who you wish to receive nothing). State in the will that the individual is your son, and you wish for them to receive nothing. Not having such provision gives rise to the assumption that you simply forgot to mention them in the will, which can lead to future problems. However an affirmative omission makes clear the drafter’s intent. 

(Validity of a will is governed by California Probate Section 6100 seq., 6110 seq., and 8220 seq.)

 

PLEASE NOTE: Simply drafting a will does NOT AVOID PROBATE. I highly recommend against drafting your own will without the assistance of a qualified attorney. Further, simply drafting a will is NOT a proper substitute for a modern day estate plan. This disclaimer is not merely to get me and other estate planning attorneys more money by having an individual pay us to draft a will – It is simply a strong advisement that proceeding with a self-drafted will and nothing else can lead to costly complications in the future. If I or other estate planning attorneys were only seeking financial gain, it would make more sense to advise clients to have no proper estate planning whatsoever as attorney’s fees in a probate proceeding FAR supersede the cost of drafting a proper estate plan that avoid probate. Please also remember that a typical probate takes roughly 1 year to complete, where a well drafted estate plan would take about 1 week for assets to pass from the decedent to the rightful heirs.