Do you need a Probate Attorney?

When you hear the word “estate” you might think of vast gardens, lush green lawns, and a giant house in the center. But the truth is, if you own even the smallest of houses in the San Francisco Bay Area, you have an estate. California requires a Court process called a Probate if your estate assets as property or assets valued at $150,000 or more. If this describes your situation and you do not already have an estate plan in place (a will, trust, power of attorney, etc), then you know what you have to do! Setting up a trust is a relatively inexpensive and easy process that will ensure your family avoids probate. However, if you find yourself managing an estate for someone who has passed and did not have trust or estate plan in place, do not fear - an attorney can help you navigate the probate process smoothly. Now, firstly, what is probate?

The Low down on Probate and Attorneys

If a family member has passed away and you and your family (and perhaps others) have been left to divide up their assets (worth $150k +), and those assets are not in a trust or specified beneficiary account (like an IRA), you know you've got to go through a process called probate.

Probate, by definition, is the legal process of administering the estate of a deceased person. The court decides the validity of a person's will and grants its approval to the executor.  If there is no Will, the Court will appoint an Administrator.  Probates will take at least six to eight months and can involve considerable amounts of paperwork and time in court. They can also be complicated by disagreements between family members. So, the question becomes, do you hire an attorney? Well, on the one hand, attorneys are expensive, but on the other hand, probate law can be complicated, and if just a word is misplaced or misspelled, a signature is forgotten, or any number of small mistakes is made, the court can determine any of your legal documents are not valid. This puts you back to square one - and most likely paying an attorney to fix these mistakes. Just a few weeks ago I had a very nice, very smart couple retain my services after trying to go the court route alone. Had they retained an attorney at the start, they would have spent $5-10 thousand dollars to save between $100-200 thousand dollars.

Their situation was a bit more complicated than most, but it’s a good example of how hiring an experienced estate planning attorney to do things correctly at the start can potentially save you thousands upon thousands of dollars, and hundreds of hours navigating the court system. Another advantage of hiring an attorney who specializes in probate is that they know the ins and outs of the courts in your particular area. For example, I most often work in the Contra Costa County and Alameda County court houses. I know the judges there, the clerks, and how they like things to be done. That can make a big difference in and of itself - because the judge will be the one making important decisions with large legal ramifications for you and your family. And after all, judges are just people. Ok, enough chit chat. Here’s a quick guide to see if you should hire a probate lawyer:

Quick Guide - You Should Hire an Attorney if You have:

  • recently lost a spouse or other family member

  • a disabled family member

  • a business

  • been Married more than once

  • been recently divorced

  • minor children

  • the desire to leave part of your estate to charity

  • significant assets in IRAs and/or 401(k)s  

  • a taxable estate

  • real estate in multiple states

All of these things are sure to make going through probate more complicated, and that's why I suggest a good probate lawyer. If you have questions about your estate plan or the probate process, I specialize in Estate Planning and Probate and offer a free 30 minute consultation. Contact the Law Offices of Matthew B. Talbot in Walnut Creek at 925-322-1763.