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Wills and Probate

Your loved one may have died and left behind properties; you will want to know how you can inherit the properties. Your loved one may have made a will, or he/she could have died without having made a will. In both of these situations, you will need the court’s authority to inherit his/her property.

Generally, the term 'probate' refers to how a deceased person’s property is distributed to his/her loved ones, under the court's supervision. You will require the court’s permission before inheriting the property of your loved one.

The primary purpose of probate is to prevent fraud. Imagine the property of your loved one being looted or stolen after death. Thanks to probate, your loved one’s estate will remain frozen until the judge decides whether a will exists and who should inherit it. The judge will also direct how the estate should be distributed and how the creditors and taxes should be paid. Once all this is done, the court will close the estate.

If you would like to conduct probate proceedings, we invite you to contact us at the San Diego Divorce Attorney. We are the go-to law firm if you’ve been looking for a highly experienced probate attorney in San Diego. We have helped numerous individuals successfully conduct probate and we can help you too.

Is Probate Necessary?

Yes, you must first conduct probate before inheriting the property of your loved one. Remember, the primary purpose of probate is to prevent fraud. The court ensures that only the rightful beneficiaries are who inherit a deceased person’s estate through probate. If you attempt to acquire your loved one’s property without probate, you may face criminal sanctions.

However, not all estates require probate. First, you do not need probate if you intend to inherit a small estate, whose value is below $166,250.

Second, you will not require probate to inherit some specific assets. As the beneficiary, you will automatically assume ownership of certain assets once your loved one dies. Here are the most common assets that you can inherit without probate:

  • Beneficiary designations – Your loved one may have left behind life insurance policies and retirement accounts. You are entitled to these assets without applying for probate.
  • Immovable property registered under joint tenancy - Let us say you co-own a house with your spouse. If one of you dies, the surviving spouse will automatically assume ownership of the house.
  • Transfer on death accounts/Payable on death accounts – Your loved one may have designated you as the beneficiary in his/her brokerage and bank accounts. You will be entitled to the shares or money in these accounts without probate in such a situation.

Third, your loved one may have created a living trust out of his/her estate. Because the property is already under trusteeship, you will not require probate.

What Happens During Probate?

Below, we will discuss the general procedure for probate in California.

1.     Filing of the Petition

This is the first step you should take. Start by filing a petition for probate at the courthouse. Currently, the cost of filing a petition for probate in California is around $435.

Not every beneficiary can file a petition. According to California’s Inheritance Laws, only the executor or the personal representative can file one.

If your loved one left behind a will, then probably the will indicated who should be the executor. But, not all wills specify who should be the executor.

If there isn’t any executor appointed by the will, you and the other beneficiaries can file a probate petition as the personal representatives. California Inheritance Laws state that the following individuals can be the personal representatives of a deceased person:

  • the surviving spouse or domestic partner
  • children
  • parents
  • grandchildren
  • brothers and sisters
  • grandparents
  • Any other relatives, up to the sixth degree of consanguinity

If there is a dispute about who should be the personal representative, the court will appoint one. If your loved one left a will, you should attach it to the petition.

2.     Public Notice

Once you’ve filed the petition, the court will publish a notice to that effect in a newspaper. This notice informs potential creditors that the court has commenced probate proceedings.

In some cases, there might be conflicts among the potential beneficiaries about:

  • Who should inherit the estate
  • Whether the will is valid
  • Who should be the executor or the personal representative

During this stage, potential beneficiaries who may be feeling conflicted about the petition or the will can raise objections. If they do so, the court will hear these objections and make appropriate legal determinations.

3.     Testamentary Letters/Letters of Administration

If there aren’t any objections, the court will confer on the petitioner the authority to distribute the deceased’s estate. The judge will confer this authority by either testamentary letters or letters of administration.

Typically, testamentary letters are issued to executors who are appointed by the will. On the other hand, letters of administration are issued to personal representatives if the deceased died before making a will. Keep in mind that both of them are not written letters, but rather, binding legal documents. Both of these documents grant similar powers. They give the personal representative or the executor authority to manage the estate of the deceased.

4.     Administration of the Estate

Once you receive either the letters of administration or testamentary letters, you can start managing your loved one’s property. But first, ensure you have filed an inventory of the estate’s assets at the courthouse.

Then, apply for a taxpayer ID number. You should also open a bank account for the estate. Ensure you pay all the creditors and taxes of your loved one. You can set up a filing system to avoid overlooking any assets of the estate. After you’ve done so, you should request the court to close the probate.

Although this may sound overwhelming, you do not have to complete everything at once. You should expect to deal with extensive paperwork and make numerous calls. If you get stuck, you can always seek help from your attorney.

Suppose the court is satisfied that all the creditors and taxes of the estate have been paid. In that case, it will issue an order allowing you to distribute the property to the beneficiaries. If you are the only beneficiary, you can now register your loved one's estate in your name.

In most cases, there are always two or more beneficiaries. In such a situation, you should distribute the property as per the provisions of the will. If there is no will, you will be required to distribute the property per California’s Inheritance Laws. For instance, if your spouse died, California’s Inheritance Laws stipulate that you and your children should inherit his/her property.

Note that it is your job as the personal representative or executor to safeguard the deceased’s assets. For instance, you must protect heirlooms from damage or theft and maintain the deceased’s home.

How much does Probate Cost?

California’s Inheritance Laws set the cost of probate. Typically, the probate cost is approximately 4% - 7% of the deceased’s net estate.

Keep in mind that you may have to pay for the following:

  • Court filing fees
  • Executor’s fees
  • Appraisal fees
  • Attorney’s fees
  • Surety bond insurance
  • Attorney’s fees

In some cases, the will may be contested, or someone can object to the courthouse’s petition. In such situations, you will probably spend a lot of money on litigation expenses.

In other states, attorneys charge flat fees or hourly fees for probate work. However, family lawyers in California charge statutory fees for probate work. The California Probate Code sets these fees.

During the consultation, you can ask your attorney to estimate how much you should expect to pay. Note that a lawyer can't quote for you the exact fee before he/she is fully aware of the facts and circumstances of your case.

How Long Does Probate Take?

As per California’s Inheritance Laws, the personal representative or the executor should complete probate within 12 months after he/she receives the letters of testamentary or the letters of administration. However, if the executor or the personal representative files federal estate tax, he/she can take 18 months to complete probate.

If the personal representative or the executor does not complete probate within this period, he/she should file a status report to the court, explaining what has remained and what time it would take. If he/she fails to do so, the judge may order him/her to file the estate accounts at the courthouse. The judge may also remove him/her and appoint another person.

If someone has contested the will, or the beneficiaries cannot agree on how the estate should be distributed, then probate will take a long time. Sometimes, probate cases may take several years to be resolved.

The Most Common Challenges during Probate

As much as you may try to do the right job, different challenges may arise during probate. Remember that any of your family members can object to the probate proceedings. For example, if the will was not drafted properly, some of your family members can contest it.

It is quite easy to file an objection at the California probate court. This objection will stall the whole process. It may also result in litigation, which could cost you a lot of time and money.

Sometimes, it can be challenging to find the assets of the deceased. For instance, your loved one may have had bank accounts that you did not know. However, if you seek an experienced probate attorney’s help, you can easily track down these accounts and other hidden assets.

Your loved one may have also had assets in multiple states. In such situations, you will have to file for probate in all these states. For instance, if your loved one owned real estate in California and New York, you must file a probate petition in these two states. Conducting multiple probate proceedings in different states may result in considerable complications and delays.

Creditors have a legal right to claim against the assets of the estate. California’s Inheritance Laws stipulate that you have four months from the date of issue for letters of testamentary or letters of administration to receive, review, and approve or deny creditors’ claims. In some situations, the amount of the estate’s debts may exceed the value of the assets. As a result, the court will declare the estate insolvent, and the beneficiaries may not receive their inheritance. 

Remember, you will have to file an inventory of the estate’s assets at the courthouse. To do this, you may need professional appraisals. Alternatively, you can roughly estimate the value of these assets. If you decide to use rough estimates, the beneficiaries can dispute the value of the assets.

Finally, various disagreements can arise during the distribution of the property. For instance, the beneficiaries may disagree about whether the property should be sold and the cash to be distributed evenly or if it should be rented out. These disagreements will unnecessarily delay the probate process.

Is a Lawyer Necessary?

Generally, probate involves extensive paperwork. As the personal representative or the executor, you will be required to fill out numerous forms.

You can easily obtain these forms online. Sill, having these forms and knowing what you should do with them are different things altogether. It is challenging to conduct probate proceedings without the help of a family attorney.

Sometimes, certain complications may arise. For instance, the beneficiaries can start fighting over the deceased’s property. Also, the deceased's estate may have more liabilities than assets. You will require a lawyer to help you navigate through these challenges.

Estate Planning vs. Probate

Nearly every person has an estate. Your estate is everything you own, including your car, furniture, home, bank accounts, heirlooms, life insurance, investments, and personal possessions. Regardless of its size, you cannot take it along with you when you die.

You’d probably want your loved ones to inherit your estate. You’d want your property to be given to those whom you care the most. Simply put, estate planning is planning in advance who will inherit your property after you’ve died. You can consider:

  • Setting up a living trust for your dependents.
  • Writing a will that stipulates who will inherit your property.
  • Naming an inheritance manager and a guardian for your children
  • Naming who will take over your business after death

Estate planning is an ongoing process. It isn't a one-time event. You should review and update your plan regularly because your financial and family situations are subject to change.

If you don't have a plan, the State Government will come up with one for you. However, you may not like it. For instance, if you die without appointing a guardian for your children, the judge will choose one for them, whom you would have probably not selected if you were alive.

As you can see, estate planning is related to probate. While estate planning involves choosing who should inherit your property after you've died, probate involves your loved ones’ legal steps to inherit the property you’ve left behind.

Choosing the Right Probate Attorney

The legal process for inheriting your loved one's property can be long and arduous. You may end up being frustrated if you do not hire the right attorney. The better your lawyer is, the faster you will complete probate.

As a general rule, you should always select an attorney who has extensive experience in probate issues. You never know if one of your family members will contest the will or file an objection. It would be best if you chose a lawyer who has the technical know-how to solve these issues.

Each probate case is unique. Your attorney should have the expertise required to handle the unique circumstances of your case.

Before you hire any probate lawyer, check his/her background. Confirm that he/she is duly licensed. Check his/her online reviews and ratings.

Trust is crucial too. You would want to have an attorney who is available 24/7. This way, you can easily reach out to him/her if you get stuck.

You will learn a lot from the first conversation you will have with a probate attorney. From this conversation, you will know whether your lawyer will give your case the attention it deserves.

Find a San Diego Probate Attorney Near Me

If you would like to conduct probate proceedings, you may instinctively assume that you can handle everything yourself. Do not make this mistake. You will need the help of a probate attorney who is an expert in wills and probate and can understand any concerns and issues.

It is common for families to start the probate process by themselves and make fatal errors. For example, they may submit the wrong documents at the courthouse. This will make the judge refuse to sign the necessary orders, and instead, advise them to hire a lawyer to help them rectify their documents. If you work with an attorney from the start, you will complete the process much more quickly.

Get in touch with us at the San Diego Divorce Attorney if you have any questions about the probate process. Call us today at 858-529-5150 for a free consultation.


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