It is common for elderly loved ones to leave real estate properties to their children when they pass away. Whether it is the cherished family home or a rental property up north, your parent might leave this property to be shared – or divided – equally between you and your siblings.

Dealing with inherited real estate properties can often be one of the most complex aspects of the probate and estate administration process. Children who inherit such property frequently sell it and divide the profits equally, as that is usually the most straightforward way to handle it.

However, even if it is one of the easiest strategies, selling property in probate requires a few critical steps that families and executors must understand.

Three steps to selling property in probate

As the executor, you must:

1. Get a proper, official appraisal of the real property to determine its value
2. Provide written notice to the interested parties – the beneficiaries – about the appraisal and the sale
3. Obtain consent from these parties regarding the sale

Only then can you move forward with the process of selling your loved one’s real estate property.

Don’t I need court approval to sell the property?

This is an important question to consider. Though, the answer depends on your authority as executor.

Under the California Independent Administration of Estates Act (IAEA), executors may have different levels of authority, and therefore power over the property sale. And these levels of authority determine whether or not executors must obtain court approval.

So, according to the law:

• If you have full authority, you can make most decisions regarding real property without court approval. This includes sales, exchanges or matters involving the mortgage.
• If you have limited authority, you cannot sell the property or make decisions regarding it without court approval.

Regardless of the type of authority you have, you must still take the three steps listed above to sell property, and the court will still become involved if any issues or disputes should arise.

The authority you have generally depends on what your loved one included in their will. For example, some individuals might explicitly indicate that their executor should only have limited authority. Otherwise, it depends on the personal representative’s petition and the probate court’s decisions.

It is critical to understand the scope of authority you have in this process, so you and your family can navigate the probate process smoothly and effectively.

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According to the Pew Research Center, the rates of cohabitation between unmarried couples of all ages has increased. There are many reasons for this increase. Some couples choose to remain unmarried while many live together before getting married nowadays.

Regardless of the reason, this increase does come with a few setbacks of which unmarried couples must be aware, especially as they move forward into an unknown future together.

Financial issues can be convoluted

It is no secret that finances are a major aspect of a long-term relationship. Whether or not couples are married, they must determine how they will approach budgeting and paying bills if they live together.

Many California couples are aware that their financial matters could become incredibly complex if their partner passed away without an estate plan, but unexpected medical issues can also pose a great risk.

Medical matters are complicated too

Hospital visitation rights have been a point of contention for many years. Hospital staff often refused same-sex partners from seeing each other simply because anyone not related to a patient by blood or marriage had limited visitation rights. Thankfully, there are new protections in place that allow partners to visit each other. But visitation is not the only issue.

Unmarried couples frequently face challenges when it comes to making medical decisions on behalf of their significant other too – particularly if they do not have an estate plan in place.

It does not matter if couples plan to marry in the future or not. But it is critical to consider:

1. An Advance Healthcare Directive giving your partner medical powers of attorney
2. Durable Power of Attorney for your finances

We have discussed the importance of these tools in previous blog posts, but it bears repeating. Having these documents in place can help to ensure that your partner has the right and authority to make financial decisions on your behalf and get you the medical care you need – regardless of your marital status.

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For most people, their home is the most expensive asset in their name. Therefore, it is also one of the most expensive assets that you and your family must deal with during probate.

If your loved ones do not leave explicit instructions or designate their house to a specific person, it might be necessary to sell the home to repay debts on the estate or divide the assets according to the will. However, selling a house during probate can often be complex.

Here are a few essential things you should know.

What are the rules for selling a house in probate?

The California Probate Code establishes extensive rules for probate home sales, and it is not possible to cover all the rules and details of this process in one blog post. However, we can provide a brief overview.

The most important detail that you, as the personal representative, must understand is that court approval is usually necessary to sell the home. The only exception to this is if you are granted full authority under the Independent Administration of Estates Act (IAEA) as the personal representative by the Court. Otherwise, you must:

• Get court approval to move forward with the sale;
• Publish a Notice of Sale in a newspaper of general circulation;
• Sufficiently market the property for sale to obtain the highest possible offer;
• Obtain an appraisal by a court-appointed Probate Referee of the property to ensure you mark a proper listing price;
• Sell the property for at least 90% of the value appraised by a Probate Referee; and
• Have the sale confirmed and approved by the Court at hearing subject to overbids.

Once the sale is completed, you must ensure that the proceeds are combined with your loved one’s estate. Then, you can move forward with paying off debts and distributing leftover assets among beneficiaries.

However, some beneficiaries might also pose a challenge to selling the house.

Objections from beneficiaries could postpone the sale

Even if you have full authority to administer the estate, you are still required to notify all beneficiaries of your intent to sell the home.

Other children or relatives of your lost loved one might protest to the sale because they wish to keep the home for sentimental value or because they are occupying the property. Even if you have found a buyer and reached an agreement with them, an objection from a beneficiary could lead to a court hearing and auction where many parties can bid for the house, including:

• Prospective buyers or investors;
• Beneficiaries; or
• Any other interested parties.

Dealing with real property in probate can be a stressful process for you, your family and any other heirs or beneficiaries. That is why it is often beneficial to consult an experienced attorney, so you can protect your rights and the wishes of your loved ones.

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When individuals are already in a vulnerable emotional state after losing a loved one, the prospect of probate can be overwhelming. Just thinking about the process can make you and your family nervous. Considering the initial probate hearing can make you feel even more so.

It is natural to feel uncertain in this situation, but here is a brief overview of what these hearings generally involve to ease some of your family’s stress about this process.

What is the purpose of the hearing?

The initial hearing is an essential part of the probate process.

Any court hearing can cause you to feel uneasy, but this hearing is a formal step that allows the probate court to:

• Affirm the petition to probate the estate, and therefore provide the Order of Probate
• Ask the personal representative about the information provided in the petition and paperwork to ensure everything is correct
• Issue the Letters of Administration, granting the personal representative the authority and ability to execute the will and establish the timeline of the process

There are some cases when the court orders a continuance to review information or details of the estate, but the purpose of the hearing generally remains the same. The rules or requirements surrounding these hearings can vary at the local level, but this is generally what you and your family can expect from the probate hearing.

Remember: Two steps are necessary before the first hearing

Essentially, the hearing allows the court to confirm everything is in order to probate the estate. However, there are a few steps that the personal representative must take to ensure this first hearing can carry on smoothly.

They will have to:

1. Provide official notification to the beneficiaries and other interested parties at least 15 days before the hearing, and provide proof of this notice to the probate court
2. Give proper public notice according to California law and obtain the Affidavit of Public Notice for the court

Public notice is essential because one of the other purposes – and formalities – of the initial hearing is to allow any interested parties to attend and make a claim to the estate.

The thought of a court hearing can be stressful, but understanding what to expect can help families move forward with confidence.

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Conservatorships can be a helpful tool when loved ones struggle to make healthy decisions in their own best interests.

Even so, people often view conservatorships in a negative light. It is easy for individuals to abuse the power a conservatorship might give them, which has led many people to question the validity of the conservatorship over Britney Spears.

First, what does a conservatorship do?

A conservatorship puts someone else – called the conservator – in charge of another person’s affairs if they cannot manage these affairs themselves. This could include their personal care or financial decisions.

Naturally, conservators must act in the best interest of the conservatee. This is a requirement to make sure the conservatorship accomplishes its goal of protecting individuals who may not have the ability to make decisions for themselves.

Recent news leads to scrutiny over conservatorships

Many people are aware that pop icon Britney Spears has been under a conservatorship for the last 12 years. Her father, James Spears, is the conservator of his daughter and maintains control over:

• Her financial affairs and matters of her estate
• Her lifestyle and health decisions

However, Britney Spears’ attorney has now moved to suspend her father’s role as the conservator of her estate and her person. According to her attorney, Spears fears her father and worries her career will be upended if he maintains authority over her through the conservatorship.

Why is this causing controversy?

Britney Spears’ situation has garnered particular attention because of her celebrity status. However, the case has also come up against legal criticism.

It is important to note that California law outlines specific standards to grant conservatorships. The proposed conservatee must be unable to:

• Provide for their own needs, including food, clothing, shelter or physical health
• Manage their finances or avoid undue influence

Many people, from fans to legal professionals, claim that Britney Spears has proven she can accomplish all of these factors, leading them to believe that the conservatorship has lasted too long and inhibits Spears’ rights and free will.

Regardless of the outcome of this case, conservatorships can be effective to help protect loved ones in challenging situations, though it is always critical to ensure it is in the best interests of that individual.

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After the loss of a loved one, many people only want time to work through their grief. That is why even thinking about the probate process is a point of stress for many California families. Experiencing this stress often leads people to wonder why the process is even necessary.

While it can seem overwhelming to file a petition to start probate and move forward with this process, it is an important step to take to complete property transfers properly and with respect to your loved one’s wishes.

Transfers are an essential part of the probate process

As we have discussed in past blog posts, probate is the legal procedure to:

• Verify that an individual’s will is valid
• Administer their estate and assets accordingly
• Handle the individual’s remaining financial responsibilities

When someone establishes a will – or in some cases, a trust – they essentially indicate who will inherit their assets, and how they will receive them. And inheriting property through a loved one’s will requires a transfer of ownership.

But what does this mean?

In reality, the probate process is not only about verifying the will but also officially transferring ownership of assets. Even if a will is valid and bequeaths an asset to you – say, your loved one’s house – there is still an extra step to take to make sure you are the owner of this property in the eyes of the law.

Probate permits the court to transfer the title of an asset, or ownership, to the heirs included in the will. Understanding the reason and mechanics of a probate transfer is easier when you consider why some assets are required to go through probate and others are not:

• Non-probate assets often include property or accounts that already have a process for a transfer. For example, retirement accounts do not have to go through probate to transfer ownership because they already name a beneficiary.
• Probate assets, on the other hand, include property that was often owned solely by your loved one. They hold ownership of their house or vehicle by holding the title of that asset. And a probate transfer allows the court to change that and transfer the title to the heir inheriting that property.

Transfers are a critical part of the probate process, if not the primary goal of it. It is often helpful for families to speak with an experienced probate attorney to ensure they fully understand how the process and the transfer of the estate works, so they can protect their loved one’s wishes and their own rights.

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It is an understatement to say that receiving a diagnosis for cancer, heart disease or a chronic condition is frightening. Such a diagnosis could change your entire life – as well as your family’s.  As in the case of COVID-19, an illness or condition could also progress quite rapidly.

However, with the right medications and treatment, many people survive these diagnoses and continue to live fulfilling lives with some changes to manage their health. In these situations, you should consider having someone become your health historian.

What is a health historian?

While a health historian might not be an official legal or medical term, it is still an important thing for you to consider. A health historian would be someone you trust who has in-depth knowledge of your:

• Health conditions
• Family medical history
• Individual medical history
• Treatment

You can ask a close friend, family member or adult child to be your health historian.

It is helpful if you take the time to compile a written and organized history of your health conditions and treatment for this purpose. Then, you can share a copy of this document with your chosen health historian.

Why would this be helpful?

It is always beneficial to have someone other than yourself be aware of your health conditions and medical history. In case of an emergency, this person can provide critical information about your condition.

This is also helpful if your family has a history of dementia, for example. Establishing someone as the health historian for a family member with dementia can be incredibly helpful to ensure the family has an accurate image of their loved one’s condition – and therefore, how to help them – when their loved one may not remember these details about their health.

Consider making your health historian your health care agent

It is often beneficial to give your health historian the power of attorney for health care. Establishing an advance health care directive in California gives someone the ability to make decisions about your medical care if you cannot make them for yourself.

If this person also has thorough knowledge and information about your medical history, you can feel confident that your health care agent will make an informed decision on your behalf.

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Planning for the future – especially one’s future care – is important, but it can be a difficult task.

You may know how important it is to establish an advance health care directive to ensure you have a say in your medical care, but this will require the courage to acknowledge and answer some challenging questions.

Choosing an agent is not the only decision

Determining who will speak for you and make medical decisions on your behalf is one of the most important choices you must make. As we have discussed in previous posts, your health care agent should be:

• Someone you trust
• Someone who understands your needs
• Someone who respects your wishes

However, this is not the only decision you must make when you create an advance health care directive.

What questions must you consider in your advance health care directive?

When creating an advance health care directive, you also face some hard questions. After all, advance health care directives often deal with end-of-life decisions. For example, California’s form specifically asks individuals whether they wish to prolong their life or not in the circumstances where they are incapacitated.

Therefore, it is critical to carefully consider your answers to questions such as:

• Do you want to be on a ventilator if you cannot breathe on your own?
• Do you want to receive CPR or implement a Do Not Resuscitate order?
• Do you want tube feeding if you cannot feed yourself?
• Do you want other life support treatments?

Considering these “what-if” scenarios and confronting these questions can be overwhelming. However, it is crucial to contemplate them and determine what you would want in these situations. That way, you can enforce a plan and make sure your loved ones know your wishes, and you get the care you need.

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There are some things in life that you simply want to keep private. Your health and medical information are likely some of those things. Thankfully, the Health Insurance Portability and Accountability Act (HIPAA) of 1996 ensures that you have the right to keep your personal medical information private.

However, what happens in an emergency? Who can access your medical information then?

What to know about HIPAA

The Privacy Rule under HIPAA specifically states that your healthcare records will remain private, with limited access. This means that only you – or a medical professional providing your care – can access and review your medical records, including:

• Your medical history
• Conversations you have had with medical providers
• Treatments you have received
• Personal information from your health insurance company
• Billing information about you

However, the rule does allow your medical provider to speak to your spouse or family about your health condition.

These rules can be obstacles for many people

The exception to the Privacy Rule allowing spouses and family members access to your medical information does not help everyone. For example:

• Recent studies report that nearly half of California adults are unmarried, or do not plan to get married;
• Additionally, their family members might not live close enough to respond in the event of a medical emergency; and
• Many people might not be close to their families either.

What happens in these cases?

Health care agents can access your medical information

Generally, medical providers can only share your medical information with your spouse or family members – unless you designate someone to be your agent through a power of attorney for health care.

Your family does not have to be the default in these situations, as long as you take time to plan. If you designate a significant other – who is not your spouse – or a trusted friend as your agent, then they will be able to access your medical information, speak with your health care providers and ensure you get the proper medical care you need.

Preparing for emergencies is not something many people want to do, but it is critical. And one of the estate planning measures that all individuals should consider is ensuring that someone will be able to speak for you and make decisions on your behalf in the event that you are incapacitated.

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At any point in your life, death is often the last thing you want to think about. Whether it is regarding a loved one’s plan or your own, it is a difficult and emotional subject to discuss.

The anxiety that this subject causes is often one of the main reasons individuals put off estate planning for so long. However, end-of-life planning – including funeral planning – is an important step that you and your loved ones must take.

What should you include in a funeral plan?

Pre-planning funeral arrangements and wishes is not something people want to do, but it is important to think about. For example, it helps to ask your loved ones what their wishes are, such as if they prefer:

• A traditional burial
• Cremation
• A green burial
• Donation of body to scientific research

Your loved one’s choice for their funeral plan can often depend on their individual values or their cultural beliefs. Either way, it is important to respect those beliefs and their wishes.

Many people think that they should include their funeral plans in their will, but these plans should often be separate from the will to ensure the family sees and follows the plan before beginning the probate or trust administration process.

Why is it important to plan this?

There are a few reasons it is important for your loved one to have a plan for their own funeral arrangements, including:

1. Making sure their particular opinions are known. For example, many cultures have varying perspectives on cremation. Or, perhaps your loved one wishes to plan a green burial to support their eco-friendly values.
2. Attending to the details of the arrangements. This could include the finances, the funeral services and even preferences for the ceremony. Taking care of these elements and providing instructions beforehand can not only give your loved one peace of mind but also reduce the stress and pressure on your family in a time of grieving.
3. Preventing disputes. Family members might have differing opinions about the funeral arrangements, which could lead to disagreements about how to move forward.

Arguing about your loved one’s wishes is often the last thing you want to do when you have suffered such a loss. Thankfully, in California, if you leave instructions behind in writing, then your family generally must adhere to your wishes. They cannot make changes to the funeral arrangements or plan.

Even though posing the subject with your parents or other elderly loved ones can be challenging, it is important to understand their wishes and ensure they make their wishes known to the family.

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