In a recent probate case in which I represented the estate, a family law attorney unfamiliar with the complexities of the probate court, filed a claim on behalf of a creditor against the probate estate one year and one month following the decedent’s death. The suit was barred under Code of Civil Procedure §366.2 for failure to file within one year of the decedent’s death. To avoid falling into the same traps that befell this family law attorney, read on about how best to initiate suit against a deceased defendant in the probate court a world of its own, where most civil litigators are unfamiliar with probate court and the probate code.

If a plaintiff’s claim is a demand for payment for a liability based in contract or tort, a creditor’s claim is required to be filed in probate court first. If the plaintiff seeks to recover against assets of the estate, the plaintiff must first comply with the creditor’s claim procedures prior to suing the personal representative. This puts the personal representative and the probate court on notice of the plaintiff’s claim and ensures that the personal representative of the estate and the probate court are notified of all claims within a reasonable period. It also allows the personal representative to quickly ascertain the obligations against the estate and the assets at issue.

Once the creditor’s claim is rejected, the plaintiff must file suit within three months of the rejection or the suit will be time barred (Probate Code §9370). The one-year statute of limitations in Code of Civil Procedure §366.2 bars any action brought against a decedent after one year from the date of death, regardless of what the limitations period would have been had the defendant not died. Therefore, if no one else opens a probate, the proposed plaintiff must take the initiative and open a probate as a creditor, so that the plaintiff can ensure compliance with the creditor’s claim statutes as a prerequisite to bring the lawsuit. The plaintiff may file suit in any county in which the action could have been commenced had the defendant not died or in the county in which the probate estate is being administered.

Given the one-year time bar, an experienced probate attorney for the decedent’s estate may deliberately delay the filing of a probate. Therefore, if the one-year deadline from the date of death is approaching and no probate has been opened, the best approach for the plaintiff is to open a probate as a creditor and file a timely creditor’s claim. The decedent’s family might be intentionally delaying the opening of a probate in order to trigger the one-year time bar and avoid all creditors, thereby increasing the family’s inheritance.

Once suit is filed, the plaintiff must file a notice of service on the personal representative. This alerts the probate court and the personal representative that all action in the probate court must be taken in light of pending litigation that could affect the decedent’s estate and assets. Any potential distribution from the estate must be examined in conjunction with the litigation and its potential impact. Again, time is of the essence when a defendant dies. Probate Code §9354 states, “Any property distributed under court order, or any payment properly made, before the notice is filed and given is not subject to the claim or judgment. The personal representative, distributee, or payee is not liable on account of the prior distribution or payment.” This means that distributions from the probate estate could be made prior to the commencement of litigation, and those assets cannot be part of the plaintiff’s recovery.

For more information on probate or probate litigation contact: Loren M. Lopin, Probate Lawyer, Trusts & Estates P.C. Loren@estateplansf.com (415) 200-4592.

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Estate Planning In San Francisco to Protect Your Children

For families, the arrival of the first child is often the first time couples begin to think about estate planning.  Besides a revocable trust, which is necessary to avoid probate in California if your estate is over $150,000.00, a Will is just as important.  If a tragic accident were to occur and both parents died without Wills, the probate court would be left with the difficult decision of choosing a guardian to care for your surviving children.

Each parent must have their own Will.  In their Will, each parent names the Guardian of the Person and the Guardian of the Estate to handle their affairs if both parents were to die.

Guardian of the person:
The Guardian of the Person is the person you are naming to have physical custody of your children.  Most parents want to name a person whom they believe would raise their children with the parents’ values. The Will should list second and third choices for Guardian of the Person, in case named persons are unavailable or no longer living.  Before naming a Guardian of the Person in your Will, such nominee should be asked if they are up for this big responsibility, regardless of how unlikely they will be called on to step into this role.  Depending on the age of your children and your parents, I recommend not naming your parents as the first choice of Guardian of the Person, because they may not live long enough or still have the stamina to raise your young children to adulthood. If at some point a first-choice Guardian of the Person has to step down, I include a provision in the Will that allows the minor child or children to voice their preference for either the second or third nominee named in the Will.  Depending on the age and maturity of the child, the child’s preferences should be considered before placing the child with a successor Guardian of the Person.

Guardian of the estate:
Should the person you name as the Guardian of the Person be automatically named as the Guardian of the Estate? Not necessarily. The Guardian of the Estate has the responsibility of managing your money and other assets you leave for your children.   A good caring and nurturing Guardian of the Person may not have the skills of a good money manager.  Depending on your situation, it may be best to name a different person to act as the Guardian of the Estate. Further, naming one person as Guardian of the Person and another as Guardian of the Estate, serves as a check and balance in helping to protect your assets from being misappropriated as would be possible if only one person were to hold both roles.

Estate planning in San Francisco and surrounding areas is not only for people with large estates.  Regardless of how many assets you own, everyone with children needs a Will to protect their children and avoid ever having a probate judge decide who will care for your children should you both pass.

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Avoid Probate When Naming Beneficiaries Of Retirement Accounts and Life Insurance Policies

July 26, 2013

Typically, a married person names their spouse as the beneficiary of their retirement account (401(k), IRA, 403(b) etc.) or life insurance policy. Children are often named as the contingent beneficiaries. If a person is single but has children, that person’s children are often named as first beneficiaries. However, retirement accounts and life insurance policies often […]

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If You Own Real Estate In California You Need An Estate Plan

May 14, 2013

Anyone who owns or is planning to buy real estate in California should title their property in a revocable trust.  However more than 60% of Californians do no estate planning and when they die, their estate ends up in probate.  If you fail to plan ahead, in probate a judge will appoint someone to handle […]

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Loren Lopin featured on CBS Money Watch Estate Planning Segment

September 2, 2010

Money Watch recently featured Loren Lopin in a Saving and Spending segment giving advice to consumers about estate planning.

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Bureaucrat scuffs dream of homeless shoe shiner.

June 9, 2009

San Francisco Chronicle: Thursday, June 4, 2009 
Bureaucrat scuffs dream of homeless shoe shiner Loren Lopin assists former pan handler turned businessman, Larry Moore navigate the San Francisco Department of Public Works bureaucracy. “Luckily, Moore has quite a few fans. Lopin recruited a fellow attorney to donate to the first month’s rent fund. She lets […]

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