San Diego Probate Attorney
When a loved one or relative dies, most people have a lot of questions about probate. You’ve likely heard the term and you know it’s a legal thing that happens when someone dies. You might have heard something about avoiding probate, but you’re not sure what people are talking about.
What is probate?
Probate is a court supervised process of taking care of a dead person’s estate. It involves validating the will—if there is a will; appointing a personal representative; locating, protecting, and valuing the decedent’s assets; paying final bills and applicable taxes; and, upon approval of the court, distributing assets to beneficiaries.
The probate court will try to make sure all creditors, close relatives and people mentioned in the will are notified about the court proceedings. Once notified these people will have a reasonable opportunity to present their claims, or even contest the will.
The court wants to ensure that each beneficiary gets what they are fairly entitled to, as well as confirm that all debts, taxes and other obligations of the deceased are properly paid. The court supervises the probate in order to make sure all the proceedings are fair and done according to law.
The Process of Probate
If the deceased left a will, then the original document will be filed with the probate court who will determine whether it is legal and proper. In addition, someone, a close relative or the person named as executor will file a petition with the court to be appointed executor or administrator of the estate. If approved, the court will give this person authority to act on the behalf of the estate. A will does not avoid probate. It only states how the deceased intended their estate to be divided.
Does everyone have to go through probate?
No, probate is only required if the decedent owns property in his or her individual name. If all of your assets are in a fully funded revocable trust, probate is avoided. Jointly owned property, beneficiary designation property (i.e. life insurance or retirement accounts), property held in trust, and payment on death or transfer on death accounts also avoid probate.
If I die without a will, will there be probate?
That depends. For California, if you die with or without a will, but own assets in your individual name, probate is required if the gross value of those assets is greater than $150,000. The $150,000 figure specifically does not include those things mentioned above, such as, life insurance, retirement and accounts that have a beneficiary designation, or assets held in trust.
There are special rules for married couples that might help avoid probate, but still require some court involvement.
Is there a way to avoid probate?
In California probate is expensive. Attorney’s fees are a percent of the total gross estate. In addition there are court filing fees, probate referee fees, publication and other miscellaneous expenses that quickly add up.
In addition, probate can take a long time (no shorter than 8 months, sometimes years) to complete. That’s a long time to be dealing with the courts and delaying inheritances to beneficiaries.
Shockingly, probate is public. When someone dies, the will and a complete inventory of the estate become public record. Today this information is available on line to anyone at a nominal cost. This may cause beneficiaries to be subject to predators, the press, and prying neighbors.
All of this may be avoided by creating a living trust. Your beneficiaries will wind up getting their money much more quickly, in private, and with much less expense.
Do I need a probate attorney?
Legally, as the personal representative, you have the right to probate the estate by yourself. In practicality, this may prove to be difficult as there are many intricate legal procedures in the probate process. In addition, if you make a mistake you can be held personally liable by the beneficiaries.
Because it can be difficult for the average person to wade through the intricate state laws regarding probate, you may want to consult an experienced probate attorney to help you through the process. As a lawyer who has been doing this kind of work for over 30 years in San Diego, I have an in-depth knowledge of probate law and I am more than happy to help you. Please give me a call at (858) 792-5988 with any questions that you may have.