Missing Wills raise all sorts of interesting legal issues which often turn on the specific facts and circumstances, and the probate law of the state in which the deceased resided.

The Will may be missing because the deceased intentionally revoked it, in which case, depending on state probate law, an earlier Will or the state’s rules on interstate succession would determine who gets the deceased’s estate.

Alternatively, the Will may be missing because it can be proven the Will was stored in a bank vault that was destroyed in an explosion and fire. In that case the probate court may accept a photocopy of the Will (or the lawyer’s draft or computer file), together with evidence that the deceased duly signed the original.

Free probate help!

US Probate Services
www.usprobateservices.org

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A Trustee is a person or institution selected to follow the instructions provided by the declaration of Trust. A Trustee has a very high “fiduciary duty” to act with the utmost good faith in dealing with the Trust estate.

Many grantors and their respective spouses act as the initial Trustees of a revocable living Trust. In this way they remain in control until they are incapacitated or die. Then pre-selected successor Trustees are appointed in accordance with the terms of the declaration of Trust. Usually a spouse, family member or Trusted friend are selected as successor Trustees.

Trustees should be knowledgeable about financial matters, be Trustworthy, know how to manage and invest the Trust estate, care about the beneficiaries of the Trust, and have the financial capacity to reimburse the Trust in the event that they make serious mistakes. If a bank or Trust company is selected to serve as a Trustee of a Trust, it will usually charge a fee for this service, which is then paid from the Trust estate. An attorney can give you specific advice as to who you might name as a Trustee, in light of your own personal and family situation.

Free probate help!

US Probate Services
www.usprobateservices.org


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Most Personal Representatives are not prepared for the work ahead of them when they discover that they have been designated to handle the real property affairs of a loved one. A title company can be of tremendous assistance in the journey. One of the most important documents in the transaction is the original vesting deed. (Example: Grand Deed or Quitclaim Deed) A title company can research the property in question and provide the correct documentation FREE of charge. This information will help the Personal Representative if and when they need to contact a Probate Attorney. Call today if you have a specific property in question and need to verify and confirm ownership. Matt Goeglein, Fidelity National Title Co. 310 293-0784


Thank you to our guest blogger,
Matt Goeglein
http://www.MattGoeglein.com

“I’ll just take care of it.”
Fidelity National Title Co.
310 293-0784 cell

 

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Contested wills, unfortunately, are sometimes part of the probate and estate settlement process.

Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the Will to probate.

The typical objections and unhappiness is not one of them are:

(1) the Will was not properly drawn, signed or witnessed, according to the state’s formal requirements;

(2) the decedent lacked mental capacity at the time the Will was executed;

(3) there was fraud, force or undue influence; or

(4) the Will was a forgery.

If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating state.

Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.

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Many of the traditional forms of estate planning can be used effectively as asset protection techniques. Gifts of property not intended to defraud creditors remove the assets from your estate. If your child owns the farm, it is no longer at risk from your creditors – although your son’s creditors and his spouse may pose a risk.

Retirement plans have a considerable amount of asset protection built in due to federal and state law. Spendthrift provisions in life insurance contracts and certain trusts can prevent creditor attack while the assets are outside the hands of the beneficiary. Conduction business as a corporation, using limited liability companies, limited partnerships and other business entities afford considerable personal liability protection as well as possible tax advantages.

When considering an asset protection plan, these traditional forms of asset protection should be the first ones considered. But they may not be enough.

Free probate help!

US Probate Services
www.usprobateservices.org

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Bankruptcy can protect your assets in several ways. In a Chapter 7 (liquidation) case, the trustee will take all your non-exempt assets for the benefit of your creditors. But sometimes you can convert nonexempt assets into exempt ones prior to filing. Exemption planning requires advice from a local attorney because rules vary between states and even between judges within a single state. If a judgment creditor (someone who has won a lawsuit against you) obtains a lien on your property, and if that lien impairs an exemption to which you’re entitled under the Bankruptcy Code, you can “avoid” that lien. Avoiding the lien wipes it out, which prevents the lien holder from seizing your property and selling it to satisfy your debt. Some states have homestead laws that protect you only from subsequent creditors. In those states, a bankruptcy filing will probably allow you to use the state homestead exemption against all your creditors, even if you file the homestead the day before the bankruptcy.

Finally, in a Chapter 13 case, your plan may allow you to pay off the arrears on your mortgage or car loan, thereby avoiding foreclosure or repossession.

Free probate help!

US Probate Services
www.usprobateservices.org

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Hi, I’m Jim Ferrell and this is about the entire auction process and how it works. It’s very simple, auctions are a competitive bidding where everybody bids on a particular item and we get the highest and best price available for the merchandise on that particular day. It’s a fun process and it raises money quickly for the seller. A licensed auctioneer can do estate sales where they sell all the items and the merchandise from the estate, including the cars, boats, and planes. If the auctioneer is a real estate broker too, they can sell real estate at auction. This is a very popular method of getting real estate sold quickly. If it is a probate sale, try to find a Certified Probate Real Estate Specialist.

Back in 2004 we invented the short sale real estate auction before anybody really much knew what short sales were. We took the offers all weekend and then we sent in all of the offers to the bank for the highest and best offer. Of course, they always took the highest and best offer, but this was a quick way of selling short sales. Note, the auctioneer cannot sell the property at this time because the sale is posted with confirmation of the seller.

Charities can also do auctions. We like calling these benefit auctions where a nonprofit organization has a big dinner and fundraising event with a live and silent auction to raise money. In Florida and most states, a paid auctioneer must be licensed. The large ticket items are sold at a fun live auction at the end and this is where we get everybody bidding and having just one great time. This fun auction raises the most money for the different benefits. There is usually between 5 and twelve different items in the live auction. The more the merrier because the main goal of the benefit is to raise funds and nothing brings in as much as the live auction. Then to, each auction item usually only takes a few minutes to auction.

Probate is one of the biggest auction markets out there right now because “Baby Boomers” are getting old and dying. Then to, they are the largest part of the population. We’ve done dozens of probate sales, where we work with the families, heirs, creditors, judges, and attorneys in order to raise the most money for the family. This is because the heirs usually want everything to go away right now. Important, all of the revenue must go to the court until the judge release it to the personal representative or creditors. In addition to this, anything that the heirs are taking for themselves must be cleared with the judge beforehand. Hiring a good Certified Probate Liquidator will ease the long probate process. This is because they could find hidden assets that nobody normally even looks for. Some examples of these hidden assets are safety deposit boxes, old businesses the deceased was a partner in, secret real estate they owned, hidden money in the house and secret relatives. Warning, some married people hide stuff from one another and lie to one another!

Absolute and Reserve Auctions

The absolute auction, will bring the most traffic to the auction and therefore usually bring a whole lot more money. This means you start at a dollar and whatever it brings it brings. If you have the proper advertising budget and draw a whole lot more people who are going to bidding a whole lot higher, this is always the best way to go.

In a reserve auction, you really lose your advertising money if the auction item does not sell. Then to, this is very common in these modern times right now. Those people do not like to show up if they know there’s a reserve on the auction. Again, there are usually fewer bidders, therefore there is usually less bidding. Note, the real key for this kind of an auction is to have the auctioneer start the bidding real low in order to get the bidding started. So that’s a little bit about the cost of an auction.

Buyer’s Premium

The buyer’s premium was invented by Britain a long, long time ago. This is the fee the buying customer will pay for the cost of the sale. Let’s use an example of it was a 10% buyers premium. If the item sold at $1,000, then the customer would be charged $1,100. It is $1,000 for what it is sold for which is called the hammer price, and then the 10% buyers premium. This offsets the cost of the auction greatly and is very common. If not, then the items will have to bring enough to pay for the expenses of the auction and therefore it is usually a lot more if it does not have a buyers premium. For example, if there was a commission being charged by the auctioneer, the commissions are usually a whole lot higher if there is no buyer’s premiums involved because somebody has to pay these expenses and the auction has to pay for itself. In addition to this, the auction crew has to be paid. Therefore, the charges and percentages are usually higher if there is no buyer’s premium.

iBidU Peace, Prosperity and God’s Everlasting Love!

Jim Ferrell
Speaker, Author & Auctioneer

Jim Ferrell’s Fun Live Auctions
Certified Probate Liquidator
Certified Probate Rear Estate Specialist (C.P.R.E.S)

Real Estate Broker Associate
Total Real Estate Solutions

Gigmasters National Auctioneer of the Year

www.JimFerrellSpeaks.com
This email address is being protected from spambots. You need JavaScript enabled to view it.
407-765-4682

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By Jay Citarella

At its core a living trust is a fairly basic document. In fact, designed properly, it can take care of a lot of different needs.

The main purpose of a living trust is to transfer assets to heirs in the most efficient manner possible. Tending to various needs surrounding accidents, disabilities or severe illness is another function of a trust.

If it sounds like you need to be rich to have a living trust, the answer: “No, you do not have to be rich.”

Typically a basic living trust, prepared by a qualified attorney, will cost somewhere between $1,000 and $2,500. While that isn’t pocket change, it still doesn’t require someone to be rich to afford one.

In fact, if you look at what it can save an estate at the time of transfer, there aren’t many better deals out there. Why do so many people believe living trusts are only for the wealthy?

Let’s break down a living trust to see what it’s really about. While they are full of complex legal jargon and have many options making them customizable, their job is fairly simple.

The main purpose of a living trust is to allow the deceased person’s or couple’s estate (assets) to pass on to heirs without probate. A trust also ensures exact wishes are carried out, no matter how outrageous or complex.

What’s so bad about probate? That answer is simple. Probate costs money and the deceased’s wishes may not be carried out completely.

When talking about the need and cost of probate, I believe it becomes obvious that living trusts are not just for a rich crowd.

Delete – Merge UpIn general terms, if your estate is worth more than $100,000 it probably has to go through probate to pass on to heirs. Certain assets, like life insurance, retirement plans and assets held jointly with someone else, don’t count in this figure.

However, most other assets do count and the largest asset has a rule attached that surprises most people. The amount used to calculate the value of a home is total value, not equity.

If your home is worth $500,000 and you owe $400,000, fees are calculated based on the worth of $500,000. Even if you’re upside down and owe more than the value of the property, fees are still calculated on the approximate value.

Because of home ownership, many people’s estates are worth well over $100,000 simply because of their property’s gross value.

So no, a living trust is not just for rich people.

So what’s the cost of probate? There’s actually a sliding scale that begins at 4 percent for the first $100,000 of value.

The rate goes down to 2 percent as the value gets closer to $1 million.

The probate rate then holds stable at 1 percent for the next $9 million and, finally, the fee drops to one-half percent for the next $15 million. What does this mean in real dollars? Here it is.

If you have an estate that only has $100,000 in eligible assets, probate would cost the estate $4,000.

Assets of $500,000 would cost $13,000, and $1 million would cost the estate, or your heirs, $23,000.

Even at the lowest level property value, the probate cost is double or more than the cost of the document that allows you to avoid probate – a living trust. Pretty good deal right?

I haven’t even discussed many other great things a living trust can do for you and it’s already obvious that it’s a great deal financially.

The larger your estate, the better the deal, but it’s definitely not something that requires a high level of wealth to make sense.

When you factor in the control you get over exactly how your assets will be distributed, what’ll happen to your minor children and the assets they’ll inherit, the need and benefit of the trust becomes more obvious. Some of the other tasks the trust can accomplish involve decisions that might need to be made if you’re unable to make financial decisions due to a lack of capacity.

You may also record your final wishes should a life decision need to be made. What a great gift to your family, allowing them to avoid such a huge and potentially emotionally difficult decision.

If you have assets, minor children or the desire to gain control over your future and the future of your estate, I urge you to consult a qualified adviser or attorney.

You may be rich enough to benefit from this very important document — or you it may be that you’re simply smart enough to get one.

Jerry Citarella, www.InfinityGoals.com.

 

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The Secrets to Predictable Escrow Closings Revealed

by Larry Christian, Senior Title Consultant, Old Republic Title Company

In this article, a veteran of several hundred probate real estate transactions reveals what can go wrong and what you can do to avoid costly escrow closing problems.

It’s Friday afternoon at 4:55 PM and your secretary has just informed you that an exasperated estate representative is on the phone to let you know that her buyer has just “walked away” because of a delay in the sales escrow. Does this sounds all too familiar? This article is about what steps you may take that will eliminate these last minute surprises which can and often do occur at the eleventh hour on probate and other real estate sales and financing.

Who’s Driving the Bus?

So you let your Realtor pick the escrow, did you? Most all closing problems can be avoided or better managed by involving yourself in the process of choosing the escrow and escrow officer long before taking on a given legal matter. The Realtor may be tempted to choose an escrow on criteria entirely different from the ones that best serve you and your client’s interests.

Who’s Doing Your Escrow?

Does it make a difference who does your escrow? There are considerable differences between the entities which may perform your escrow and the margin of safety and integrity provided.

Independent escrow companies have by far the most stringent regulations for performing escrow services and are regulated by the Calif. Department of Corporations (800)347-6995

Real estate broker owned escrows operate under the brokers real estate license. Your transaction is as safe and secure as the financial condition of its principal. Compliance falls under jurisdiction of the Calif. Department of Real Estate (213)897-3399.

Title companies are regulated by the Calif. Dept. of Insurance (800) 897-3399 and subject to internal audit only; only as safe as the financial stability of the company providing the service.

Bank owned escrow operate under the license of the State Dept. of Banking (800) 622-0620. While offering good safety record, many banking institutions are phasing out this service.

As you can see, each of these are governed by a different regulatory agency and each has its own set of qualifications to meet for that agency. This also suggests that each may have its own respective competency level, depending on the experience of the escrow officer and the frequency of encountering probate transactions.

Escrow’s Role & Responsibilities

While the escrow holder’s duty seems simple when looked at from outside, they quickly become far more difficult given the conditions that they must operate within. These are the typical duties of an escrow officer:

  • Acts as an impartial holder (depository) of documents and funds
  • Process and coordinate the flow of documents and funds
  • Respond to lender’s requirements (conditions)
  • Keep all parties informed of progress of the escrow
  • Obtain approval of reports and documents from parties, as required per escrow instructions
  • Prorate and adjust insurance, taxes, rents, etc.
  • Secure a title insurance policy
  • Record documents relating to property transfer (grant deed or order) and loan documents
  • Maintain security and accountability of all moneys owed and owing

What Can Go Wrong (Meet Mr. Murphy)

Good intentions and faulty assumptions often spell out why real estate transactions have closing problems. While not every mishap can be avoided, most can be eliminated long before a listing for sale of a buyer’s offer is accepted.

Using the services of escrow service which is not experienced with all forms of probate realty transactions is a formula for disaster. Few escrow officers will volunteer their lack of knowledge and may erroneously that no substantial differences exist between probate and a typical sale or refinance. The first clue that the escrow officer doesn’t understand your transaction should be when he or she asks: “Who’s the probation officer?” It is better to query escrow officers about their experience with probate before opening escrow by using open ended questions such as asking them to describe the most difficult probate transaction they have encountered and how their services helped save it.

Title related issues frequently tops the list of surprises. When title vests differently than expected, such as when a spouse or other relative is shown to have an ownership interest, the problem may be resolved by a simple action such as filing an affidavit death of joint tenant or a quitclaim deed. However, when a person or entity vests on title as co-owner (or sole owner!) these problems make require months to research and resolve.

Surprise liens are also a bit of a shock to a seller who believes title to property to be free and clear of all liens. Loans from private lenders paid but not reconveyed can require several months of valuable time to clear up. The likelihood of such title problems will not be disclosed in a simple title profile, either. Also, determine what documents (Court orders, etc.) your title company will require prior to issuing a title policy. Since each title company is different, develop a relationship with a specific title company well in advance and know their guidelines. Anticipating their requests is your best assurance of obtaining a title policy on a timely basis.

Finally, don’t assume that the realty agent will know what remedial actions to take, if needed. Lender delays can and do play havoc with the simplest transactions, too. If at all possible, discourage the principals from working with Realtors or lenders who are inexperienced in selling or financing real property currently held in probate.

Why YOU Must be the Driver of this Bus

Before your next transaction, you’ll save yourself and your client much grief and frustration by choosing an escrow company well in advance of your next transaction. Developing a business relationship can assure that escrow has a long term stake in serving your best interests. Here’s a summary of points to consider:

  • YOU choose the escrow service, not the Realtor
  • Develop a business relationship with that escrow service
  • YOU choose the title insurance company and develop a working relationship with their staff
  • Purchase a preliminary [title] report (not a profile) well in advance of the transaction
  • Use checklists to assure that you have complied with your title company’s guidelines
  • Don’t assume that all realty agents are probate real estate experts Stay involved with the process!

The choice of an escrow service can have a profound affect on the outcome of your probate real estate transaction. By permitting someone else to make this decision, you have lost control of your client’s file and potentially jeopardized the sale or financing of this property. Perhaps most importantly, clients will likely remember your role in the probate and, if not satisfied, you’ve missed an opportunity to receive future referrals from that client.

Mr. Christian is a veteran of over twenty years in the real estate industry. His background includes running an escrow desk, escrow office management and later as title officer. He is currently Senior Title Representative at Old Republic Title where his responsibilities focus on acting as a liaison between the company and the probate legal community.

Free probate help!

US Probate Services
www.usprobateservices.org

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The Secrets to Predictable Escrow Closings Revealed

by Larry Christian, Senior Title Consultant, Old Republic Title Company

In this article, a veteran of several hundred probate real estate transactions reveals what can go wrong and what you can do to avoid costly escrow closing problems.

It’s Friday afternoon at 4:55 PM and your secretary has just informed you that an exasperated estate representative is on the phone to let you know that her buyer has just “walked away” because of a delay in the sales escrow. Does this sounds all too familiar? This article is about what steps you may take that will eliminate these last minute surprises which can and often do occur at the eleventh hour on probate and other real estate sales and financing.

Who’s Driving the Bus?

So you let your Realtor pick the escrow, did you? Most all closing problems can be avoided or better managed by involving yourself in the process of choosing the escrow and escrow officer long before taking on a given legal matter. The Realtor may be tempted to choose an escrow on criteria entirely different from the ones that best serve you and your client’s interests.

Who’s Doing Your Escrow?

Does it make a difference who does your escrow? There are considerable differences between the entities which may perform your escrow and the margin of safety and integrity provided.

Independent escrow companies have by far the most stringent regulations for performing escrow services and are regulated by the Calif. Department of Corporations (800)347-6995

Real estate broker owned escrows operate under the brokers real estate license. Your transaction is as safe and secure as the financial condition of its principal. Compliance falls under jurisdiction of the Calif. Department of Real Estate (213)897-3399.

Title companies are regulated by the Calif. Dept. of Insurance (800) 897-3399 and subject to internal audit only; only as safe as the financial stability of the company providing the service.

Bank owned escrow operate under the license of the State Dept. of Banking (800) 622-0620. While offering good safety record, many banking institutions are phasing out this service.

As you can see, each of these are governed by a different regulatory agency and each has its own set of qualifications to meet for that agency. This also suggests that each may have its own respective competency level, depending on the experience of the escrow officer and the frequency of encountering probate transactions.

Escrow’s Role & Responsibilities

While the escrow holder’s duty seems simple when looked at from outside, they quickly become far more difficult given the conditions that they must operate within. These are the typical duties of an escrow officer:

  • Acts as an impartial holder (depository) of documents and funds
  • Process and coordinate the flow of documents and funds
  • Respond to lender’s requirements (conditions)
  • Keep all parties informed of progress of the escrow
  • Obtain approval of reports and documents from parties, as required per escrow instructions
  • Prorate and adjust insurance, taxes, rents, etc.
  • Secure a title insurance policy
  • Record documents relating to property transfer (grant deed or order) and loan documents
  • Maintain security and accountability of all moneys owed and owing

What Can Go Wrong (Meet Mr. Murphy)

Good intentions and faulty assumptions often spell out why real estate transactions have closing problems. While not every mishap can be avoided, most can be eliminated long before a listing for sale of a buyer’s offer is accepted.

Using the services of escrow service which is not experienced with all forms of probate realty transactions is a formula for disaster. Few escrow officers will volunteer their lack of knowledge and may erroneously that no substantial differences exist between probate and a typical sale or refinance. The first clue that the escrow officer doesn’t understand your transaction should be when he or she asks: “Who’s the probation officer?” It is better to query escrow officers about their experience with probate before opening escrow by using open ended questions such as asking them to describe the most difficult probate transaction they have encountered and how their services helped save it.

Title related issues frequently tops the list of surprises. When title vests differently than expected, such as when a spouse or other relative is shown to have an ownership interest, the problem may be resolved by a simple action such as filing an affidavit death of joint tenant or a quitclaim deed. However, when a person or entity vests on title as co-owner (or sole owner!) these problems make require months to research and resolve.

Surprise liens are also a bit of a shock to a seller who believes title to property to be free and clear of all liens. Loans from private lenders paid but not reconveyed can require several months of valuable time to clear up. The likelihood of such title problems will not be disclosed in a simple title profile, either. Also, determine what documents (Court orders, etc.) your title company will require prior to issuing a title policy. Since each title company is different, develop a relationship with a specific title company well in advance and know their guidelines. Anticipating their requests is your best assurance of obtaining a title policy on a timely basis.

Finally, don’t assume that the realty agent will know what remedial actions to take, if needed. Lender delays can and do play havoc with the simplest transactions, too. If at all possible, discourage the principals from working with Realtors or lenders who are inexperienced in selling or financing real property currently held in probate.

Why YOU Must be the Driver of this Bus

Before your next transaction, you’ll save yourself and your client much grief and frustration by choosing an escrow company well in advance of your next transaction. Developing a business relationship can assure that escrow has a long term stake in serving your best interests. Here’s a summary of points to consider:

  • YOU choose the escrow service, not the Realtor
  • Develop a business relationship with that escrow service
  • YOU choose the title insurance company and develop a working relationship with their staff
  • Purchase a preliminary [title] report (not a profile) well in advance of the transaction
  • Use checklists to assure that you have complied with your title company’s guidelines
  • Don’t assume that all realty agents are probate real estate experts Stay involved with the process!

The choice of an escrow service can have a profound affect on the outcome of your probate real estate transaction. By permitting someone else to make this decision, you have lost control of your client’s file and potentially jeopardized the sale or financing of this property. Perhaps most importantly, clients will likely remember your role in the probate and, if not satisfied, you’ve missed an opportunity to receive future referrals from that client.

Mr. Christian is a veteran of over twenty years in the real estate industry. His background includes running an escrow desk, escrow office management and later as title officer. He is currently Senior Title Representative at Old Republic Title where his responsibilities focus on acting as a liaison between the company and the probate legal community.

Free probate help!

US Probate Services 
www.usprobateservices.org

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