Probate & Estates
Probate is a court managed procedure that begins when a loved one passes away with only a will, or no estate plan at all. This can be an arduous process. As a Walnut Creek Probate Attorney, Matthew works hand in hand with his clients to ensure they are guided through the probate process in a caring and compassionate way.
Sound, Caring Guidance.
The probate process is designed to collect assets and distribute them pursuant to a Will or intestate succession when there is no Will. The Probate process can be long and difficult to navigate for Executors and others who do not have extensive experience with the Probate Courts. Talbot Law Group represents Administrators and helps them to move through Probate as quickly, efficiently and cost effectively as possible. Our attorneys regularly appear in Court and have represented Executors and Administrators in numerous Probates in Contra Costa and Alameda County.
To determine whether a Probate is necessary, there are a series of questions you should ask about your loved one's estate. “Estate” is defined as the value of funds and real property owned by the loved one that do not already have designated beneficiaries.
1. Did your loved one have assets valued at over $150,000?
In California, if the entirety of a person's estate, including houses and cars, is less than $150,000, then you don't need to go through probate. If one’s estate is over $150,000, a Probate will be necessary to transfer assets out of the decedent’s name. Keep in mind that the total value of one’s house, exclusive of mortgage owed, is used to calculate the value of one’s estate.
2. How are accounts and real property titled?
If accounts (such as bank or investment) and real property (such as a home) are titled in the name of the loved one (i.e., Joe Smith), then a Probate could be necessary. If they are titled in the name of a Trust (i.e. "Joe Smith, Trustee of the Joe Smith Trust"), then they would not be a part of the probate. Instead, a Trust Administration would be in order. If the accounts and real property titled in the name of the loved one push the Estate's value over $150,000, then a Probate would be necessary in California.
3. Are any accounts "Payable Upon Death", "Transferable on Death" or do they have listed Beneficiaries?
If accounts are payable or transferable upon death, then they would not be part of the $150,000 calculation. Those accounts are distributed directly to the listed beneficiary. These accounts are typically set up as "POD's and TOD's". All the beneficiary has to do is provide a Death Certificate and complete bank paperwork. Assets such as life insurance, IRA's, and 401k's are the most common types of accounts with a listed beneficiary.
4. Are there any accounts with joint owners?
If an account or piece of property is jointly owned and one owner passes away, then the assets in those accounts become the living owners' assets. No further paperwork or effort is required by that living owner.
5. Are there any insurance policies with no stated beneficiary?
Insurance policies require a beneficiary. However, sometimes people fail to include a stated beneficiary on their policies. In those instances, the insurance proceeds are distributed to the Estate. If the proceeds, coupled with other assets, are more than $150,000, then a Probate would be necessary.
There might be accounts with varying titles, meaning some are distributed through a Probate, while others are distributed in other ways. An attorney can help you determine which assets are subject to probate.
What does a Probate Attorney do?
Talbot Law Group has an experienced Team of Probate Attorneys who have handled numerous Probate matters in Contra Costa and Alameda County. As the Attorney for the Personal Representative of an Estate (Administrator/Executor) we do the following for our clients:
Attend all Court Hearings. Straightforward Probates typically require between 3-5 Court Hearings, while Complex Probates can require many more. The attorney for the Executor or Administrator appears at all Court Hearings and works to ensure that each hearing is a success. For example, your attorney will prepare the Petition for Probate with all accompanying documentation, ensure all the Tentative Rulings of the Court are addressed, and the Petition is successfully granted at the Court Hearing.
Meet all Legal Duties. The Administrator of an Estate has significant legal duties and fiduciary obligations to meet. An experienced probate attorney will ensure that the Administrator or Executor meets all legal obligations, fiduciary obligations, and deadlines. This includes responsibilities such as properly noticing beneficiaries and creditors, managing and distributing assets, filing taxes, and other duties associated with probating the estate. A solid probate attorney also helps mitigate family disagreements over major and minor issues and prevent potential lawsuits from beneficiaries.
Access & Distribute Assets Quickly. The successful probate of an estate involves a number of steps and strict requirements that must be met. Probate Courts are busy and will not hesitate to continue your hearing if all of these requirements are not met. A continued hearing means months are added to the process, delaying access to funds and assets. An experienced Probate Attorney assists family members and others in being appointed as Administrator as quickly as possible so that the Administrator can access estate funds. Thereafter, the attorney will ensure that each requirement along the way is met in the most expedient way possible, so that funds can be distributed to beneficiaries.
Overview of the Probate Process in California
The California Probate Courts oversee the probate process in order to:
Prove that the Will is valid
Appoint a legal representative for decedent (person who has passed)
Marshal assets (locate and manage the decedent's property)
Pay taxes and debts
Distribute property and assets according to the Will or intestate succession (heirs).
The first step in administering a probate is filing the Petition for Probate with the court located in the County where the decedent passed away. If everything is filed correctly, a court hearing will be set in order to appoint a Personal Representative(administrator or executor). Once a personal representative has been appointed, they can begin the duties of a Personal Representative, Administrator, or Executor in California. Responsibilities include marshaling assets, paying debts and taxes, and distributing assets. Each of these three tasks is complex and has certain legal and fiduciary duties associated with it. Examples include properly noticing heirs, creditors, & the IRS; filing an inventory and appraisal with the court; obtaining an EIN; Taking inventory for assets and having them appraised; Filing the Inventory & Appraisal with the Court; locating and paying creditors, among other duties. Once these obligations have been completed, the personal representative can file a final accounting and petition for distribution with the court. The court will set a hearing date to decide on the finalization of the estate.
Complex Probate in Contra Costa and Alameda County
In many cases a probate is relatively straightforward to administer, and family members may have the time and energy required to navigate the court system. However, some probate cases can become very complicated, even when there is no litigation involved, and heirs are in agreement. I specialize in complex probate matters within Contra Costa and Alameda County. Examples of complex probate estates include:
Multiple Creditor Claims
Almost every estate will have at least some creditor claims. Some probate estates, however, will have an excessive amount of creditor claims. A probate attorney can be helpful in organizing, paying, and filing these claims with the court, negotiate down creditor claims, and assist with creditor claims from foreign countries.
Real Property Sale
When a probate involves one more more pieces of real property (a home, land, or building) that need to be sold, the probate process can begin to get more complicated. A probate attorney who has significant experience with probates in the San Francisco East Bay will be able to recommend a realtor who understands the complexities of selling real property within the probate process. The attorney can also work hand in hand with the realtor to ensure the property is sold as expeditiously as possible, and at the best price. Complexities that can arise with the sale of real property in a probate estate include:
Out of State Property
Tenants living in Probate Properties
Special Sale properties such as Commercial land
Watch our Video to learn more about how the Administrator of an Estate Sells Real Property in a Probate
Top Probate Law Firm Talbot Law Group specializes in probate, contested wills and probate litigation in Walnut Creek, Concord, San Ramon, Lafayette, Orinda, Moraga, Danville, Alamo, Martinez, Benicia, Livermore, Pleasanton and surrounding areas. We are happy to answer any questions you may have. For a consultation, call us at: 925-322-1795.