While I don't litigate, I hope my blog can help readers understand how wills, trusts, and other elements of estate planning affect real people, and that it prompts more families to do sound planning.
Avoiding probate is important because probate adds stress, costs, and other pressures on loved ones during a period that is already painful. Of course I advise my clients to get a comprehensive will and living trust in place, then review them about every three years with an eye to whether your situation (or the tax law) has changed, so they can rest easy.
But if circumstance occur such that you must deal with probate:
Suppose your relative, Roger, passes on at his home in Glendora, and you learn that you are named in his will. Because he did not have a living trust, you will probably be involved in the probate of Roger's estate.
Probate is a legal procedure that identifies the beneficiaries and heirs to an estate and determines how much of that estate each of them is legally entitled to receive. It is used to sort out how much is owed to creditors, to pay them, and to officially prove a Will is genuine (or to determine who should receive the property if one dies without a Will).
Roger's estate must be probated in the county where he lived. So Roger's Will should be filed with the Clerk of the Los Angeles County Superior Court within 30 days after his death. The person nominated as Executor will fill out a “Petition to Probate Decedent’s Estate”. Filling it out requires:
• Name of the personal representative who will oversee the estate (executor)
• Estimated value of the decedent’s estate
• Names, addresses, ages, and relationships of Roger's nearest living relatives, and all persons named in his will, either as beneficiaries or executors.
Once the representative files the petition, the court will set a hearing date. Then the representative must send a Notice of Petition to all parties named in the petition, and publish a notice in the authorized newspaper of record for the city where Roger lived.
If Roger died without a will -- or "intestate" -- the court may “administer” his estate. In such cases, rather than filing a Petition to Probate Decedent’s Estate, the petitioner would file a “Petition to Administer Estate”.
After the hearing, the probate judge will enter an order granting or denying the petition. If the petition is granted, and all the required documents have been filed with the court, the court will issue Letters Testamentary (or Letters of Administration in cases involving an intestate estate). This is the document that gives the representative the legal authority to manage the assets of the estate.
After the initial filing
As I said earlier, probate involves a ton of legalese. It is also a long process, more than a year in most cases. The Court provides some help navigating the process, but will not give legal advice. There are many different requirements that must be met, which vary depending on the particular assets, debts, heirs, and beneficiaries of the estate. Prior to closing the probate, a comprehensive accounting must be filed with the court, using a format that is only used in probate accounting.
There are also non-court procedures that must be followed. These relate to tax issues, property issues, and personal liability of the representative, to name a few. There are various court hearings throughout the process. If the representative is going it alone, he or she must attend these hearings.
Because of the many different procedures that must be strictly followed, many attorneys (and even judges) will hire a probate attorney to help them through the process.
Getting legal help
Probate is often more complex, more stressful, and more time consuming than most people want to handle on their own. If you face a probate, you should hire an experienced probate attorney for legal help. He or she can represent you in all aspects of the probate process, from initial filing of the will and petition to closure. You won't even need to take time off work to attend the hearings. Most of the work can be done via phone or e-mail. If you get stuck with a probate, please call me, Glendora attorney Cloyd Havens II, for assistance at 626-335-6884.