When do I need a Probate Attorney? 

Many executors have never settled an estate. Some are surprised to learn the decedent's will named them as the responsible party. In most cases, the party responsible for settling the estate has no prior experience with probate tasks that include:

• Filing the will with the California probate court

• Obtaining court approval to act estate representative and posting bond

• Developing the best strategy for fairly and expeditiously settling the estate

• Finding and assembling assets

• Paying creditors and claimants

• Collecting amounts owed the estate

• Closing and opening bank accounts

• Transferring assets from the deceased to the estate

• Paying current and delinquent taxes as well as estate taxes

• Valuing, managing, preserving and distributing estate assets

• Locating beneficiaries

• Hiring experts, when appropriate.

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What happens when someone dies without a will? 

When the decedent did not leave a will, or a will is ruled invalid, the estate is said to be “intestate.” In these situations, the court will appoint a capable person who was close to the decedent to act as personal representative for the estate. The tasks of settling the estate are basically the same, but property passes to the decedent’s heirs according to the state’s laws of inheritance, which create a priority system. The estate administrator must identify and locate eligible persons, which might be tricky if the decedent didn’t have a spouse or children. If there are no relatives, the property goes to the state in what is known as “escheatment.” 

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How do you value assets within an estate? 

Our attorneys assist executors with the arduous process of collecting, valuing, protecting and liquidating the assets of the estate. We can also advise on the dispersal of assets placed in trusts, as well as property that is transferred outside the probate process. When appropriate, we call upon accountants, financial advisers, real estate agents, property managers and other professionals to assist with executor duties. Our firm can also obtain expert opinions about unique assets such as antiques, rare books, automobiles, fine art and other collectibles for accurate valuation, management and possible sale. 

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What is the difference between formal and informal probate? 

In California, there are two main methods of settling an estate, referred to as formal and informal probate. The formal process goes through the Probate Court, which generally makes it more time-consuming and expensive. Under the formal system, an estate representative, known as an executor or administrator, must follow required steps under the supervision of a judge. These steps include:

• Producing a death certificate

• Receiving a formal appointment as administrator

• Notifying creditors

• Creating an inventory of estate assets and debt

• Paying taxes

• Paying the decedent’s outstanding bills and closing their accounts

• Distributing property to beneficiaries

Finally, the administrator closes probate and relinquishes responsibility for the estate.

The informal process is streamlined, does not involve a judge and goes much more quickly, but it is only available for estates where the total value falls below a certain threshold and no real estate is being transferred. California requires formal probate for all estates valued at $162,250 and up. Estates with lower valuations can settle via a small estate process that does not require formal probate.

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Why is Avoiding Probate Crucial? 

There are many potential downsides of the formal probate process, including:

• Delays in receiving property — If beneficiaries are dependent on the assets they anticipate receiving, waiting for months, or even more than a year, might be stressful and inflict unnecessary financial hardship.

• Expense — Estate assets are used to pay legal fees, a stipend to the executor, appraisal costs on property and court expenses. This means less wealth transferred to beneficiaries.

• Lack of privacy — The probate process creates a public record of the value of estate assets, intended beneficiaries and any conditions associated with the inheritance.

• Loss of control — A judge’s rulings can be adverse to the decedent’s intentions and the beneficiaries’ interest.

For these reasons and more, many individuals and families seek to avoid shifting property ownership through probate.. 

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How do I Avoid Probate in California? 

There are a variety of strategies that enable testators to avoid probate so their assets pass directly to their intended beneficiaries. These include:

Naming beneficiaries — Retirement plans, insurance policies and bank accounts allow owners to designate a beneficiary to receive assets upon the owner’s death.

• Right of survivorship — Certain legal relationships provide for co-ownership. If, for example, two persons own a home as joint tenants, full ownership of the home passes to the surviving owner.

• Transfer on death deed — A property deed can contain instructions to transfer ownership to a new owner.

• Trusts — Individuals can use one or more trusts to hold property, which upon their passing is transferred to trust beneficiaries.

Although we recommend taking prudent steps to protect your wealth, our firm does not perform estate planning. We focus exclusively on probate and trust litigation. Thus, if anything goes wrong with the processes we’ve explained on this page, we are ready to help you assert your rights and seek a favorable resolution.