San Clemente Probate Attorney

While no one can predict the future, there will come a time when you realize there may be more days behind you than ahead. Making decisions for the end of life can be difficult but empowering. Estate planning with a San Clemente probate attorney can help you care for your loved ones after you are no longer able to do so. However, even with proper planning, your assets may go through a probate court, which can delay the distribution of your assets and reduce the value of your estate.

At the Estate Preservation Group, our team can help you with your estate planning needs and prepare you and your estate for the probate process. A San Clemente probate lawyer can help you understand how probate can affect one’s assets. Our firm can unravel the confusing process to help ensure that your wishes are carried out. In some instances, we can even help you avoid the probate process in San Clemente, CA.

What Is Probate?

Probate oversees the disposition of a person’s assets. Through this process, the court will seek to correctly distribute these assets to descendants and beneficiaries once creditors and taxes are paid. Probate covers assets that are not otherwise designated by a different legal plan. During this process, the court will appoint an executor or administrator whose responsibility is to oversee the estate while beneficiaries and heirs are notified.

Assets That Avoid Probate

With proper estate planning, a person’s assets can avoid the probate process.

Types of assets that do not require probate include:

Accounts that have named a beneficiary. If the deceased set up a pay-on-death or transfer-on-death account, then financial institutions can release funds to the identified beneficiaries. To claim these accounts, the beneficiary must present a death certificate and personal identification.
Joint tenancy with survivorship rights. If a person owns a joint account with another individual, the surviving individual will take over ownership of the account. To remove the deceased from the account, the surviving owner simply needs to present a death certificate.
Assets that are part of a trust or intended to be. One of the easiest ways to avoid probate is to include assets as part of a trust. These assets are then distributed according to the terms of the trust. On rare occasions, there may be assets that were to be included in the trust but were not. Under the right circumstances, these assets can be added after the individual passes.
Assets under $166,000. When the total value of the assets is less than this amount, not including real estate, then the assets can be settled through the heirs and not be required to go through probate court.

Testate vs. Intestate

Testate and intestate refer to the validity of any will that may have been created prior to a person’s death. Testate means that there was a valid will, while intestate means there was not. If a will is valid, then a person’s assets can be distributed according to the terms outlined within the will. If the will is invalid, the assets will be distributed according to the law, which may pass them on to children, spouses, or other family members.

Valid wills have a person who is designated to distribute the assets, known as the executor, whereas an invalid will lead to the court appointing someone to oversee the estate, known as the administrator.

The Probate Process in California

The probate process is not a short one because all unprotected assets must pass through the court. Unfortunately, it can be challenged by any of the parties involved. With the help of an attorney, like those at the Estate Preservation Group, you can avoid costly delays in probate.

The first step is to petition the court to begin the process. This is done by the person who is designated as the personal representative of the estate, either as identified through the deceased’s will or as designated by California law.

The petition becomes part of the court process by providing the names of potential heirs and beneficiaries as well as the assets in question. After the petition is filed, it will take approximately 45 to 60 days to move forward.

Once this begins, the probate court will need to:

Review letters of testament that establish the personal representative.
Settle any debts.
Proceed through accounting to verify all the assets.

A plan for distribution is then established.

Unfortunately, the process can be met with many challenges, including the sale of any real estate and the waiving of any associated bonds. Furthermore, creditor claims must be addressed to determine if they have a legitimate claim to any assets.

San Clemente Probate FAQs

Q: Who Pays for Probate in California?

A: The court costs and associated estate administration fees are generally paid out of the estate itself. These costs are generally not paid until the process is settled. In some cases, the personal representative or their attorney will arrange the fee payments until probate has been settled. On some occasions, the personal representative may receive a payment as well.

Q: How Do I Avoid Probate in San Clemente, CA?

A: There are several ways to avoid the probate process in California. Common ways include creating a trust, establishing joint ownership, or creating payable- and transferable-on-death documents for items such as bank accounts, securities, real estate, and vehicles. If you wish to avoid probate, speak with an experienced estate planning attorney who can help you review your options.

Q: Who Does a Probate Attorney Represent in California?

A: Probate attorneys could represent a number of individuals involved in the process. They could represent the estate, an heir to the estate, a beneficiary, or the personal representative set to administer the assets. Whenever there are questions about probate or the assets in question, it is recommended to speak with an attorney who can help provide the answers you need.

Q: Can I Write My Own Will in California?

A: California recognizes holographic wills. These documents are produced by hand in the natural writing of the individual who is looking to determine the outcome of their assets. You must have been of sound mind at the time of creation for it to be considered valid. If there is any pressure from others, it will be invalid.