Your Guide to Probate
The majority of estates will go through the probate process. 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. The Probate process in the Courts is long, and can be expensive. Many people try to avoid using that process when distributing assets, if possible. To determine whether a Probate is necessary, there are a series of questions you should ask about your loved one's estate. Estate here is defined as the value of funds and real property owned by the loved one.
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 do a probate at all.
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. 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" or "Transferable on Death"?
If accounts are payable or transferrable 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.
The Benefits of Hiring an Attorney for the Probate Process
You are not required to have an attorney to assist with the Probate Process in California. However, most courts recommend the guidance of an attorney for estates that are complex. An attorney will ensure that the personal representative (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. An attorney can also help avoid family disagreements over both major and minor issues, as well as avoid potential lawsuits from 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.
Attorney Matthew Talbot speaks about the steps in beginning a probate, and how to determine if a probate is necessary.
Contested Wills & Probate Litigation
While many trust and estate attorneys in the San Francisco East Bay handle basic probates, I specialize in complex and litigated probate matters. My number one priority when litigating probate matters is resolving the issues as quickly and efficiently as possible. I work with clients to ensure that further harm is not done to familial relationships, and assets are preserved for beneficiaries, not spent on attorney's fees.
Common Reasons Probate Litigation Arises:
One or more persons dispute the validity of the Will
No Will exists
There is evidence of an Oral Contract to Make a Will
The Estate Administrator/Executor is not fulfilling their fiduciary duties
An heir was not notified of the petition for probate
A prior contract exists that invalidates the will
A will has been lost
A creditor claim is in dispute
Unfortunately, there are a host of reasons families and beneficiaries can argue over the distribution of an estate. An experienced probate attorney who frequently handles probate litigation can guide you through the necessary steps to resolve disputes and finalize the estate for distribution.
Complex Probate in the SF East Bay
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
I specialize in probate,contested wills and probate litigation for residents of Walnut Creek, Concord, San Ramon, Lafayette, Orinda, Moraga, Danville, Alamo, and Martinez. I am happy to answer any questions you may have. For a free consultation, call us at: 925-322-1763.