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David L. Crockett

David L. Crockett

Crockett Law Corporation
  • Probate, Real Estate Law, Estate Planning...
  • California
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Practice Areas
  • Probate
  • Real Estate Law
  • Estate Planning
  • Tax Law
  • Free Consultation
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Jurisdictions Admitted to Practice
  • English: Spoken, Written
Professional Experience
University of California - Los Angeles
J.D. (1969)
University of California - Berkeley
B.S. (1966)
Professional Associations
California State Bar # 46632
- Current
Legal Answers
44 Questions Answered

Q. What happens to a mortgaged property when homeowner dies intestate and nothing is filed in probate.
A: This is a usual type of situation and hopefully the heirs of the homeowner are on top of the situation. The mortgage and the obligation to make mortgage payments stays on the property after the death of the homeowner. If the payments are not made late charges will accrue and eventually the mortgage lender will foreclose. The house could be lost to foreclosure unless the legal deadlines and legal notices are tended to. It doesn't matter if anyone is living in the property. The lender will foreclose in any situation if not paid. If there is a foreclosure sale then whomever is living on the property will eventually be evicted by whomever buys the property at the foreclosure auction. Somebody needs to file a probate court proceeding in the county where the homeowner died. The point of probate is to put somebody in charge of the property and other accounts and assets of the deceased person. Ultimately, the assets are sold and/or distributed through the court probate process after all debts and taxes are paid. The distribution is to the heirs in percentages according to the laws of intestate succession found in the probate code. Any interested party can file the probate and take charge of the situation. That is typically a surviving spouse or surviving children or parents. David L. Crockett, attorney/CPA/broker, Martindale Hubble AV preeminent rating.
Q. What should I do in CA if the executor has not filed probate within the 30 days required and has exceeded 3 months.
A: It is not unusual for executors to not be prompt in getting their act together to file. However, I don't blame your mom to want to get on with it. Since your mom is in the will, meaning she is an heir/beneficiary, she has a legal right to file a petition for probate in the county where the person making the will (the decedent) died. If she files, then her brother will also be forced to file a petition for probate or he will lose is preference to be appointed. It is not uncommon for there being competing petitions for probate in the same estate and then the Judge will sort it out and decided who is the one to become the executor. I would recommend that your mom send one demand letter to her brother and keep a copy of the letter. The demand letter should point out the facts: name of decedent, date of death, the named executor, maybe the named alternate executor, and state that if he doesn't file a petition for probate in 10 days and notify of it in writing then she is going to file instead as an "interested party". If your mom has an attorney, then maybe have her attorney write it for more impact. It is also a legitimate concern to get a probate going so assets don't disappear. The longer the delays, the more likely assets will disappear and/or money gets improperly spent. Good luck on this. David L. Crockett, attorney/CPA/broker/Martindale Hubble AV preeminent rating.
Q. What is the correct title for an 850 petition, and how much detail should I go into for the court?
A: Sorry to hear about your situation. The proper title would be " PETITION FOR DETERMINATION OF TRUST ASSETS [P.C. ยง17200]". I just did one in the Orange County Superior court and it was successful. It could also be referred to as an 850 petition. Also, I was able to get an earlier court date than the court first assigned so that we could get a court order determining that the property was in the trust so that the trustee could sell it. Doing a petition such as this avoids probate but these petitions can involve various court appearances and filings. You might save a lot of time having an experienced lawyer handle this. If the house in question is to be sold some lawyers would wait to get paid out of the house sale proceeds. The petition has to state the proper facts in the proper legal terminology to get it through the court system. To answer your question, probably the more detail you put in it the better but also if it is not done correctly it could be denied and/or after up to a year of back and forth with the court the petition could be denied and then you would be having to do a probate which could take up to a year. Good luck with this. David L Crockett, attorney/CPA/broker/Martindale Hubble preeminent rating.
Q. How does my son claim inheritance money left to his dad before he passed away
A: This is a good question and it is important to be proactive about this situation. First, you will need to see the dad's will and trust if there is one. Those documents would say what your son does and does not get to inherit. These documents should be provided by the person handling the father's estate and/or trust. Write a letter and keep a copy for making this request. Do not rely on email. Second, you will need to obtain the documentation describing/proving the inheritance money left to the dad. That should be obtainable from the person handling that estate. You would need to determine if the inheritance money left to the dad has conditions attached. For example, was there a condition of survivorship? i.e. did the dad have to be alive to inherit? If the inheritance money is significant then your son should retail legal counsel to figure this all out and make proper legal demands and to to court if necessary. Good luck with this. David L. Crockett, attorney/CPA/Broker/Martindale Hubblle AV preeminent rating
Q. Final order in probate cased signed and filed.
A: Hi, the law mandates distribution within a "reasonable time". There is no set number of days in which to do this because different circumstances dictate doing different things to accomplish the distribution. If you are not satisfied with the progress then you should write a letter, keep a copy, and send it certified mail return receipt so you can prove you made the demand. Do not rely on email requests. If your demand does not cause a distribution, then you should file a court petition to compel distribution. It should not have to come to the filing of a petition but if there is no other way then you will have to do that. It it looks like there is going to be any trouble or unreasonable delay, then I advise that you immediately file a court petition to compel distribution because it takes so long for things to get to trial-maybe as long as a year- depending upon the county. Also notify the bonding company of your demand for distribution if there is a probate bond. Failure to distribute can sometimes mean the money has been misappropriated by the executor in which case you might have a claim against the probate bond. If there is no bond, then you would still have the claim against the executor but if it comes to that it may be a long legal road to collection. Good luck on this. I hope the money is still there and available for distribution. David L. Crockett, attorney/CPA/Broker/Martindale Hubble AV preeminent rating.
Q. Can I change a lawyer who is working on a living trust He has been paid one half of the fee, and the other half is due
A: I appreciate your concern as you are entitled to professional service. If there is a written fee agreement with the lawyer, you may be obligated under that agreement to continue working with him to get the trust finished. You should make all of your requests to him in the form of written letters that you keep copies of the letters and ask in each letter that he provide you with a written answer to each question within a reasonable time deadline. Doing that should keep this on track to get the job done. If the lawyer does not reasonably respond to your letters then you may have a right to terminate his services. Again, that would depend upon the wording of the agreement with the attorney. From the attorney's point of view, if this is a fixed fee living trust assignment, there may be limits to what time the attorney can afford to spend on your trust preparation. In some sense you get what you pay for in this area. Some people believe that because living trusts can be pulled off the internet for low cost that they can pay a similar low cost fee to a lawyer and get an elaborate trust with lots of details and special provisions. Trusts come in all shapes and sizes so to speak but there are practical limitations as to what a lawyer can do for a fixed fee. I hope this gives you some direction. David L. Crockett, attorney/CPA/Broker/Martindale Hubble AV preeminent rating.
Q. received notification by trustee under probate code 16061.7 and it requests my signature to receive a copy of trust
A: Yes, you should sign it to receive a copy of the trust since you might be mentioned in it. The law requires that all trust beneficiaries and all heirs (even if the heirs aren't mentioned in the trust) be notified of the change in trustees resulting from the death and the that notice give the recipient's the right to obtain a copy of the trust if they ask for it. Hence, the signature requirement to confirm that you are asking. Also the date of when you receive the trust is crucial because you only have 120 days from the date of the notification letter or 60 days from the receipt of the trust documents, whichever is later, to contest the trust. Contesting the trust means filing a court petition (lawsuit) contesting the trust. You should consult an attorney to discuss the situation if you think there is anything wrong with the trust. You have to have legal grounds to contest and there are risks involved with contesting such as losing your right to inherit anything if the trust and/or related will have a valid "no contest" clause. David L. Crockett, attorney/CPA/Broker/Martindale Hubble AV preeminent rating.
Q. What happens if living trust is outdated at time of death and there are no survivors to settle the estate?
A: I am sorry to hear of your unfortunate situation. Your trust is a private contract and only controls the assets that you still own at your death. In that sense, your trust is not "outdated", but rather it has no assets to distribute or administer. Since your trust is revocable and not registered with any government agency nobody will notice or care about your trust when you pass on. Your trust could be revoked or amended but in you circumstances there wouldn't be any purpose really. You could amend the trust to name a successor trustee to handle your burial wishes, disposal of personal stuff and your cats. That trust amendment and the original trust should be given to the person you name as successor trustee. If you do not have any successor trustee to handle your affairs when you die, there would be a Public Administrator in the county where your reside at your date of death who would handle your personal affairs if you don't have a successor trustee or an executor. I would suggest that you prepare a handwritten will which states your burial preferences and what to do with your personal stuff and your cats. The handwritten will must be handwritten in your own handwriting, must be done on plain paper that doesn't have any printing on it, must be dated and signed at the end by you. It should say at the beginning, "This is my Will". David L. Crockett, attorney/CPA/Broker?/Martindale Hubbel AV preeminent rating
Q. how can i find out who tried to have me declared dead
A: Wow that sounds like a huge scam! You should write a letter (keep a copy) and send it certified mail return receipt requested to hour school loan advisor asking the questions: (1) who claimed to be your spouse; (2) what written documentation was presented making this claim; and (3) pleas provide a copy of that written documentation. You should also contact your local police department fraud division and explain the situation because there may have been a criminal act. Good luck. David L. Crockett, attorney/cpa/broker/Martindale Hubble AV preeminent rating.
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