Probate laws are complicated, and probate procedures can be very difficult for attorneys not familiar with the inner workings of the system. California has an intricate probate procedure, and challenges requiring an attorney often occur, even in “simple” probate cases. Probate can also be a very time-consuming and lengthy process, lasting many months or, in extreme cases, years.
The experienced lawyers Santiago & Jones will navigate probate proceedings effectively for you. We regularly handle the various unanticipated conflicts and problems that arise during probate.
When a family member or friend passes away, those left behind must deal with the loss, as well as handle the affairs of their estate. If the estate’s assets are not held by a trust, the assets may need to be administered through the court process called “probate”.
Probate involves the court appointment of an executor or administrator (known as a “personal representative”) to facilitate the decedent’s estate administration. After the court appoints an executor, he or she must gather and protect estate assets, process payments to creditors and resolve disputed claims, and provide a financial accounting to estate beneficiaries and the court for all monetary transactions. Typically, complicated issues arise which must be resolved, such as deciding which debts are paid when limited funds are available and making the determination as to which beneficiaries are entitled to specific distributions based upon the terms of a will
If a valid will exists, the terms of the will establish the personal representative and the manner in which assets are distributed to heirs. If no will exists, California law provides several rules for determining the heirs of an estate. These laws, in the California Probate Code, can be difficult to analyze and require the assistance of an experienced probate attorney.
The first step in the probate process is to file a probate petition in the county where the decedent lived. The probate court will then appoint a personal representative to administer and distribute the estate. If the decedent had a will, the executor named in the will is usually the personal representative. If the decedent died without a will, they are considered to have died “intestate” and the court will appoint an Administrator to act as personal representative. The court can also appoint an administrator if the executor cannot act or does not act.
Once the personal representative is appointed and the petition for probate is approved, the Court will issue either orders which enable the personal representative to conduct estate business. This typically involves identifying and listing estate assets, resolving claims against the estate, and selling real or personal property. An inventory of the estate includes all of the estate’s property. Typical assets include: homes, cars, bank accounts, investment accounts, and personal property (such as household furnishings and jewelry) which are all considered property of the estate. The personal representative must also notify creditors of the existence of the probate estate and determine whether to pay or reject claims. rejected creditor claims often result in separate lawsuits against the estate, and this will delay the finalizing the probate estate until the suit is resolved. In many cases, the personal representative must also notify various government agencies of the administration, and pay any state and federal taxes. It also may be necessary to initiate legal action against third parties to recover property of the estate property in their possession.
After estate assets are identified and liquidated, and necessary payments made to creditors, the personal representative will submit a petition seeking court authority to distribute remaining assets to the beneficiaries and close the estate. At this time, the representative must file an accounting with the court detailing his or her efforts and handling of estate assets and liabilities.
California law provides for attorney and executor fees on a percentage basis depending on the amount of assets in the estate. In addition to these fees – known as “statutory fees” – courts often award “extraordinary fees” for services performed, which are outside the normal process of probate administration. Attorney and executor fees in probate cases are paid by the estate, when the estate is closed, at the end of the legal proceeding. As a result, clients are not required to pay any monies with funds at the beginning of their probate case. When the case is ready to be closed, a petition will be filed with the court detailing fees and costs, and requesting authorization for payment. After court approval, the executor will pay all fees and reimburse out of pocket costs from estate assets.
The court will set a hearing date to close out the estate, and if the paperwork is prepared properly and there are no objections to the petition to close the estate, the court will grant the petition, allowing the representative to take the actions necessary to distribute the assets and close the estate.
Given the depth of experience with all levels of probate, seeking the assistance and guidance of Santiago & Jones will be a beneficial decision for you, and will benefit any probate matter.