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.
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.
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:
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.
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:
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:
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:
At the Estate Preservation Group, we provide a relaxing atmosphere and one-on-one attention to our clients.
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).
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.
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.
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.
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.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice
regarding your individual situation. Contacting us does not create an attorney-client relationship.