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The stress of losing a loved one can be difficult to manage. On top of coping with the loss, many family members find themselves also dealing with the legal aftermath and what their loved one has left behind. This often involves the probate process, which loved ones are required to go through so the decedent’s assets can be dispersed, with or without a will in place.

Creating a will is one important component of estate planning, and a well-written and valid one can make the probate process easier for your family. There are also other estate planning options when it comes to limiting the stress of probate.

What Is Probate?

Probate refers to court cases that deal with determining who gets a person’s assets after death. This could include determining if a will exists and is valid after someone’s death. Probate also determines who the beneficiaries are, what the value of the property left behind is, and who is going to deal with the decedent’s financial responsibilities. Finally, probate is also where the decedent’s property is transferred to the beneficiaries.

The Probate Process in California

If you’ve recently lost a loved one and are wondering how the probate process works, the exact scenario depends on your specific situation. An experienced estate planning attorney can look at your situation and assist with the probate process from start to finish. A straightforward probate process without contests, disputes, or creditor claims typically follows the steps below. If problems or disputes do arise, there could be more steps. The basic process is as follows:

  1. Locate the will. If your loved one was prepared, this may be a simple step, but it is not always the case. Often, if the will was created with the help of a lawyer, the lawyer has the document and can begin the administration process once they are notified of the death. A will should be stored somewhere safe, but making sure the right people know where it is stored is most important so it can be easily located upon one’s passing.
  2. Obtain the death certificate. You are going to want to obtain several certified copies of the death certificate, as they are going to be requested by any organization the decedent has assets under. This includes banks, life insurance companies, brokerages, retirement firms, and more.
  3. File a petition for probate with the probate court. This should occur in the county where the decedent resided at the time of their death. Filing the petition for probate requires you to provide the death certificate, a copy of the will, and the petition for probate paperwork. The court then appoints the executor as named in the will, or the court can appoint an administrator if no will exists.
  4. Locate and determine the value of the decedent’s assets. This is often a longer step in the process. It includes creating an inventory of the estate property, and some assets of the estate will need to be professionally appraised to determine their value. You may also need to wait for postal mail correspondence from different organizations where the decedent had accounts. Only the assets subject to probate are required to be accounted for in this step. If the decedent had a trust, for example, the assets in the trust are not required to go through probate.
  5. Pay creditors and taxes owed by the decedent. Once creditors are notified of the person’s death, they submit a claim for any money owed. All valid claims need to be paid from the estate before any distributions are made to heirs or beneficiaries. Creditors have four months after a representative of the estate is appointed in California. Taxes must also be paid prior to the disbursement of assets.
  6. Distribute assets to the heirs and beneficiaries. Once all liabilities have been paid, the administrator or executor can distribute the remaining assets according to the will or California’s intestate laws.
  7. Close the estate. This requires the administrator or executor to provide a detailed accounting of all the transactions that occurred. Once all of the tasks are carried out, the court closes the estate’s probate file.

Trusts and Probate

In California, a trust can be created, which allows your beneficiaries to avoid probate for any assets within the trust. Virtually any assets can be held within a trust, and the creator still has control of everything within it while they are alive. The person creating a trust designates a successor trustee who takes over management of the trust upon their death. This person holds titles to assets and disperses assets to beneficiaries according to the decedent’s instructions.

A trust rarely covers 100% of assets a person owns upon their death since purchases made up to the time of death may not be listed in the trust. However, by putting large or valuable assets into the trust, loved ones can avoid a high-stress probate process knowing important and/or valuable items will not be subject to going through probate.

Probate and Estate Litigation

Unfortunately, the probate process does not always go smoothly. Probate litigation occurs when there is a legal dispute between the people involved in a probate case. This could be a dispute between beneficiaries or between an executor and a beneficiary. Claims that can lead to litigation during the probate process include:

  • Questioning the validity of the will. This goes back to the importance of being prepared and thorough with the creation of a legal and valid will, signed in the presence of witnesses. Handwritten wills are accepted in California, but they are more likely to be scrutinized for their validity.
  • Misappropriation of funds. When an executor is named in a will, they have access to the assets of the decedent’s estate. If a beneficiary or other party suspects the executor is using the money for their own purposes or another unauthorized use, litigation is likely to occur.
  • Claims of undue influence. A person can attempt to invalidate a will if they believe the person who wrote the will was pressured or inappropriately influenced during its creation or the creation of an amendment. Arguments could include not being in a sound mental state when the will or amendment were written or being bribed or threatened in some way.
  • Breach of fiduciary duties. If the manager of the will, typically named the executor, acts in their own best interests rather than in the best interests of the deceased, litigation can occur. This could include pocketing funds or not acting out the decedent’s wishes outlined in the will.
  • Omitted heir. Even if a parent intentionally left a child out of the will, someone who would legally stand to inherit property under intestate laws can contest the will and attempt to litigate for an inheritance.

Do I Need a Lawyer for Probate Court?

A lawyer is not required for you to file for and navigate probate in California, but it is certainly recommended. Hiring a lawyer should be strongly considered in cases where disagreements or any type of estate litigation is involved. For high net worth estates, a lawyer is also strongly recommended to support executors throughout the probate process.

Any court proceedings can be stressful, and this is especially true when you’re also dealing with the loss of a loved one. An experienced probate attorney, like the ones at the Estate Preservation Group,can support you through the process and ensure it goes as smoothly and quickly as possible.

Some responsibilities of a probate lawyer include assisting the executor with:

  • Preparing and filing necessary documents with the court
  • Transferring assets to the appropriate beneficiaries
  • Assisting with obtaining appraisals for the decedent’s property
  • Collecting proceeds from insurance policies and retirement funds
  • Resolving tax issues, including income tax, inheritance tax, or estate tax

How to Choose a Probate Lawyer

All lawyers are not created equal, so it is important to do your research when selecting a Carlsbad probate attorney. There are several considerations to make when selecting an attorney to represent you throughout the probate process:

  • Experience and specialty. Some lawyers have a general approach to their practice, offering services in many areas. These types of lawyers may have their place, but if you want to ensure high-quality service, find a lawyer who specializes in estate planning and California probate law. As you contact potential lawyers, share your situation and ask if they have handled similar cases in the past and what the outcome of those cases was.
  • Personality. Some personality types just don’t mix. Get a feel for how your potential lawyer treats clients. If you are in a particularly vulnerable state after losing a loved one, you may want a lawyer who has a more caring and gentler demeanor. Others prefer a straight-to-the-point and down-to-business type of attitude. Speaking with multiple lawyers during your research can help you get a feel for which one matches your personality.
  • Consider litigation potential. Think about who is outlined (or omitted) from the will you are taking to probate and consider how likely litigation might be. If you foresee the possibility of someone contesting the will, make sure the lawyer you choose has experience representing clients in litigious probate cases.

At the Estate Preservation Group, we provide a relaxing atmosphere and one-on-one attention to our clients.

Frequently Asked Questions

What If a Will Was Not Created Prior to a Person’s Death?

If no will exists, the probate process can remain much the same in terms of steps to take. However, the judge is going to appoint someone to serve as the administrator since an executor was not named in a will. Judges typically appoint a spouse, child, or another close relative when possible. The assets are also distributed according to intestate succession law, meaning the assets left behind are distributed to the decedent’s closest living relatives (usually their spouse or children).

How Much Do Probate Attorneys and Court Fees Cost in California?

The rate and fee structure of probate attorneys in California is generally calculated as a percentage of the estate. The percentage depends on the value of the estate, but the maximum allowed fees start at 4% of the value of the estate. The percentage decreases as the value of the estate increases. Permitted fees are 4% for the first $100,000 of the estate, 3% of the next $100,000, 2% of the next $800,000, and so on. Personal representatives are also entitled to the same fee, so you often pay double the fee — one payment to the attorney and one to the representative. Filing fees with the court may also apply.

How Long After a Person’s Death Must Probate Be Filed?

The person who has the decedent’s will, usually the executor, must file the petition to probate within 30 days of a person’s death. Without filing, the assets stay in the deceased’s name. If no will exists, anyone who wants to serve as the personal representative for a state can file the petition in probate court.This is often the spouse, partner, child, or close relative of the decedent.

How Long Does Probate Take in California?

The probate process typically takes at least nine months to complete in the most straightforward cases. However, it is more likely the process will take 12-18 months and possibly longer. Hiring an experienced probate attorney can help move the process along as quickly and efficiently as possible.

Contact Our Law Offices for a Probate Attorney Carlsbad, CA

If you are navigating the probate process after the death of a loved one, we understand the stress you are likely experiencing, and our team is here to help. If you are looking at estate planning options and would like to create a trust, will, or both, our experienced team is ready to serve you.

Estate planning is crucial in many ways, both for you and your loved ones. Work with the Carlsbad estate planning attorneys at Estate Preservation Group to ensure your assets are dispersed according to your wishes — and help ease the stress of loved ones upon your passing. Contact us today to discuss your situation and learn how we can help.

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