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I am administrator of a probate case in California. I have…

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Hello, I am administrator...

Hello, I am administrator of a probate case in California. I have already requested file for final distribution and was to have paid my brother's for their portion of the estate by the hearing on December 7th however I have been unable to obtain a loan because of credit problems. I need to write a status report re discharge review hearing according to the probate examiner and she says it's different from other status reports it's concise and straight to the point and needs to be turned in ahead of time. I told her I was going to do it on pleading paper and she says yes that's the way it's done. I don't know how to write it though. Have any suggestions?

Lawyer's Assistant: What state is this in? And when did the issue begin?

California and about two and a half years ago. I told the probate Examiner that because of credit problems related to having to pay for all of the estate Ally Financial responsibilities as the estate had no money in it on credit. Also, a year ago my son died and I was depressed and bills were paid late. I need to know how to form the pleading paper and put this in writing.

Lawyer's Assistant: What documents or supporting evidence do you have?

We are now in a loan process now that our credit score has improved and we have paid off some of our debts and the application has been approved verbally but not in writing yet. Addendum, we had a large amount of deaths already related to paying probate cost and having a drug-addicted son who needed treatment and related to motor vehicle accidents in a fire well he was alive and clean up after he died.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I think that's it

Submitted: 5 months ago.Category: Estate Law
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Answered in 7 minutes by:
11/18/2017
Estate Lawyer: RayAnswers, Attorney replied 5 months ago
RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 46,334
Experience: Texas lawyer for 30 years in Estate law
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

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Customer reply replied 5 months ago
Ok
Estate Lawyer: RayAnswers, Attorney replied 5 months ago

Forms , you ask for more time under Item 6 and state how much time and why..

https://www.lacourt.org/forms/pdf/pro039.pdf

If you need more space here put "see attached page 2" under this Item 6 and set out all of your facts and need for more time

I appreciate the chance to help you today.Thanks and thanks for rating 5 stars.

If you can positive rate 5 stars it is much appreciated.

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Customer reply replied 5 months ago
Just to be clear this is a status report re discharge review hearing in a probate case
Estate Lawyer: RayAnswers, Attorney replied 5 months ago

File for extension, here is the final accounting you file afterwards, this gives you more time.

http://www.scscourt.org/forms_and_filing/forms/Sample_Petition_for_Final_Distribution.pdf

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Customer reply replied 5 months ago
Actually I wrote up a status report on pleading paper and I have a copy saved on my computer but I'm not sure it's right. I'm on my Android cell phone and wish I had contacted you on the computer so I could send you the status report I wrote for your opinion. Is there any way possible to do this? In other words is there a way to switch from my cell phone to my computer to continue or answering the questions.
Estate Lawyer: RayAnswers, Attorney replied 5 months ago
  1. A final account and petition for distribution can be filed by the Personal Representative when there are sufficient funds available to pay all debts and taxes, the time for filing creditors' claims has expired, and the estate is in a condition to be closed.

    The Personal Representative is required to file a petition for final distribution or a verified report on the status of the estate within one year after Letters are issued (or 18 months if a federal estate tax return is required).
  2. What must I do to close the estate?

    The Personal Representative must file a final account, report and petition for final distribution, have the petition set for hearing, give notice of the hearing to interested persons, and obtain a court order approving the final distribution.

    If the Personal Representative wants to receive compensation for his or her services, a petition for fees should also be included in the petition for final distribution.

    A final account does not have to be filed if all the persons entitled to distribution of the estate sign a written waiver of account or a written acknowledgment of receipt of their share of the estate.
  3. Does a status report need to be filed?

    If the estate cannot be closed within one year after issuance of Letters (or 18 months if the estate is required to file a federal estate tax return), the Personal Representative must file a verified report on the status of the estate.

    The status report must show the condition of the estate, the reasons why it cannot be closed and distributed (for example, if there is ongoing litigation, or an estate tax audit, or real property that must be sold to pay debts or cash gifts), and the estimated time needed to close the estate.

    The status report is set for hearing in the same manner as any other probate petition. A Notice of Hearing
    (Form DE-120, Judicial Council) must be sent to persons interested in the estate at least 15 days prior to the hearing.

    The Notice of Hearing must include the following statement in not less than 10-point boldface type in substantially the following words:

    You have the right to petition for an account under Section 10950 of the California Probate Code.

    At the hearing, the court may order that the estate may remain open for such time and on such conditions as the court finds reasonable if it is in the best interests of the estate and the beneficiaries, or the court may order the representative to file a petition for final distribution.

    If the representative does not file a status report, anyone interested in the estate may petition the court to obtain a status report, or the court on its own motion may require the report and cite the Personal Representative into court to comply.

    Failure of the Personal Representative to comply with the order is grounds to have his or her letters revoked, and the court may also reduce compensation if the time for administration exceeds one year (or 18 months if a federal estate tax return is required).

     

  4. How are fees determined for the personal representative and attorney?

    California law allows both a Personal Representative and the attorney for the Personal Representative to take a fee (referred to as a statutory fee) for ordinary services, calculated as a percentage of the appraised value of the estate property. The formula for calculating the fee is as follows, from Probate Code Section 10810:

    4% of the first one hundred thousand dollars ($100,000), plus
    3% of the next one hundred thousand dollars ($100,000), plus
    2% of the next eight hundred thousand dollars ($800,000), plus
    1% of the next nine million dollars ($9,000,000), plus
    ½ of 1% of the next fifteen million dollars ($15,000,000).

    For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

    If an accounting is filed, the fee base used to calculate the statutory fee also includes income received during administration, plus gains over the appraised value on assets sold during administration, minus any losses from the appraised value on assets sold during administration.

    Mortgages or other debt obligations are not considered in computing the fee base.

    Disbursements for debts or expenses are not factored into the calculation; neither are unrealized gains or losses (such as for securities that have increased or dropped in value since the date of death), but only if the property is actually sold.

    Statutory fees are set by statute and if requested, the Court has no discretion to reduce the amount of fees, unless the Personal Representative has unreasonably delayed the closing of the estate or may be surcharged (penalized) for other estate mismanagement. However, any fee paid to a Personal Representative must be reported on his or her personal income tax return as ordinary income, so the Personal Representative may choose not to take a fee if he or she will be receiving property from the estate as an inheritance (which is not counted as income to the beneficiary).

    Also, although the Personal Representative and the attorney for the estate are entitled to the statutory percentage as a fee, the Personal Representative can ask for an amount lower than the statutory percentage, and can also negotiate with the attorney for a reduced fee, particularly if the estate is uncomplicated and has only a few assets of high value (such as a home).

    However, any agreement between the Personal Representative and the attorney for higher compensation is void. An attorney who acts both as Personal Representative and as attorney may receive only one fee, unless the court approves the double payment in advance. This also applies to associates or partners of the attorney. Persons acting as co-executors must divide the fee among themselves.

    A court order is required before any fees can be paid to either the Personal Representative or the attorney. Reimbursement for expenses advanced by the Personal Representative or the attorney, such as for filing fees, certified copies, or publication costs, may be made without a court order.

    Additional compensation, known as an extraordinary fee, may also be paid to the Personal Representative and/or the attorney for the Personal Representative for extraordinary services in an amount that the court determines is just and reasonable.

    Some examples of the types of services that are considered extraordinary and for which extraordinary compensation may be awarded are:

    • Sales of real property, litigation of claims against the estate,
    • Litigation involving estate property, preparation of income and/or
    • Estate tax returns and representation before taxing authorities on audits connected with the returns, and will contests. In contrast with statutory fees, payment of extraordinary fees is not guaranteed, and the Court does have discretion to decide whether to allow extra compensation, even when services of an extraordinary nature are rendered.

      For example, the Court may consider that the statutory fee calculated on an estate where the only asset was the decedent's personal residence that was sold for $1 million is reasonable compensation (the statutory fee would be $21,150), even though the sale of real property is considered to be a type of service for which extraordinary compensation may be awarded.

     

  5. Do I have to prepare an accounting?

    The Personal Representative is required to file an accounting of the financial transactions that have occurred in the administration of the estate unless all persons entitled to distribution of the estate have signed a written waiver of account or a written acknowledgment that the person has received his or her share of the estate (e.g., a receipt on a preliminary distribution).

    A sample form of Waiver of Account is included in this website. If all distributees waive an account, the Personal Representative must still file a report, including the amount of compensation requested by the Personal Representative and/or the attorney and setting forth the basis for computing the fees.

     

  6. How do I prepare an accounting?

    All accounts filed with the court must include a financial statement and report of administration according to specific guidelines found at Probate Code sections 1060-1064 and 10900. The account must state the period covered and contain a summary, supported by detailed schedules, showing the following:
    • Property on hand at the beginning of the accounting period (i.e., the inventory value of all assets),
    • the value of assets received during the accounting period, excluding property listed in an inventory,
    • income receipts, excluding receipts from a trade or business,
    • net income from a trade or business,
    • gains on sales,
    • disbursements, excluding disbursements for a trade or business and excluding distribution to beneficiaries,
    • losses on sales,
    • net losses from a trade or business,
    • distributions to beneficiaries, and
    • property on hand at the end of the accounting period, listing each asset at its appraised value as shown on the inventory and appraisal (carry value), and its current market value.

    A sample Summary of Account form is included in this website.

    The financial statement may also include additional schedules required for information purposes under
    Probate Code sections 1061 and 1062, if applicable, such as:

    • A schedule showing the estimated market value of the assets on hand as of the end of the accounting period,
    • A schedule showing purchases or other changes in the form of assets during the period of the accounting (except for transfers of cash between accounts in financial institutions or money market mutual funds),
    • A schedule allocating receipts and disbursements between principal and income, if the estate is to be distributed to an income beneficiary,
    • A schedule listing income, disbursements and proceeds of sale attributable to specifically devised property,
    • A schedule showing the calculation of interest to be paid on specific cash gifts to a beneficiary, if required under Probate Code sections 12003, 12004, 12005 or 16314.
    • A schedule showing the proposed distribution of estate assets to beneficiaries, including an allocation between testamentary trusts established under the decedent's Will or subtrusts created under a revocable living trust established by the decedent during his or her lifetime, and
    • A schedule listing any liabilities, including loans which are secured by estate assets, obligations for taxes due but unpaid, notes payable by the estate, judgments for which the estate is liable, or any other material liability (but not liabilities which are recurring expenses such as rent or utility payments).
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Estate Lawyer: RayAnswers, Attorney replied 5 months ago

If you will positive rate5 stars and give me your email we can do this offline and you can send it by email reply.Thanks

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Estate Lawyer: RayAnswers, Attorney replied 5 months ago
Ask Your Own Estate Law Question
Customer reply replied 5 months ago
I appreciate the form that you sent me but I already sent that status report. The chord examiner says it's not your typical status report like this but it's short, concise, and to the point. I need to know how to write an introduction and ask for what I want,a continuance
Customer reply replied 5 months ago
Court examiner told me to write a status report asking for a 4 months continuance
Estate Lawyer: RayAnswers, Attorney replied 5 months ago

I would use the form I gave you , you can re tittle it first amended status report and motion for continuance.Use it for form and type your own word document.There is not a perfect premade form for this I am giving you the best or nearest one I can.

If you want me to read your draft I will send you an offer to do so.

accept and be happy to read and comment.

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