Understanding probate can be quite challenging, and while it’s best to meet with a probate attorney in San Diego to ensure that all questions are properly addressed, this guide provides insight into the probate process, responsibilities of a probate attorney, and reasons to hire one.
What is Probate?
The term probate is used to describe the legal process of transferring a deceased person’s assets to the respective legal heirs or named beneficiaries. Probate also addresses any debt that could be remaining and typically includes the validating and honoring of the deceased’s will. Often, the parties are receptive to the contents of the will; however, sometimes not everyone is in agreement and they can choose to contest the validity of the will. This involves legal action and the hiring of a probate attorney.
Probate will occur whether or not there is a will. In order to avoid it, one must:
- Have a trust
- Have all assets beneficiary designated, OR
- Have total assets that don’t exceed $50,000 in real property and $150,000 in total
What Exactly Does a Probate Attorney Do?
A probate attorney is the person responsible for filing the latest testament or will of the deceased. Some probate attorneys can also handle probate litigation, which occurs when family members aren’t in agreement with the contents of the will.
During probate litigation, the court will thoroughly review the case to determine if the deceased individual’s will should be validated as-is or if another arrangement will be followed.
Are There Any Differences Between an Estate Probate Attorney and a Probate Lawyer?
Yes, there are a few slight differences between these two types of attorneys.
An estate probate attorney typically focuses on the planning and paperwork of an estate. This process involves the drafting of both wills and trusts for individuals when they are alive.
A probate lawyer handles the estate after death through the court. Many probate attorneys do not handle litigation, so if you need a San Diego probate attorney that does, make sure they have probate litigation experience.
7 Reasons to Contact a Probate Attorney in San Diego
Regardless of what your involvement with the probate process may be, remember that you aren’t alone. We encourage you to seek legal advice with an attorney who specializes in probate law.
1. A Probate Attorney Can Help You Build your Will
While it’s not a necessity to have an attorney write up your will, it will certainly make things a lot easier for you and your family members. How so? Having a professional is the only way to guarantee that your last will and testament outlines everything that you need. It will also help to reduce the chance of probate litigation and provide evidence to support your Will in the event of litigation.
2. A Good Estate Probate Attorney Can Make Sure that the Estate will be Protected
Unfortunately, legal claims against a deceased estate happen quite frequently. Who usually will make these claims? It depends, but usually, we see family members who have been cut out or left a smaller share than they expected. Creditors may also file claims in against the estate in probate. Hiring an experienced probate attorney will ensure only proper creditor claims are paid and reduce the risk you will be invalidated.
3. A Probate Lawyer Can Help to Solve Conflicts in the Family
Probate attorneys can act as a neutral third party should a family conflict arise. Oftentimes family members can get emotional and pretty heated during probate. Not only because they are trying to come to terms with the death of their loved one, but they might not agree on the terms of the will. Having a lawyer present can help to ease tensions and minimize conflict resulting in a smoother probate process.
4. A Probate Attorney Can Help When You Have Assets Not Left in a Trust
Any assets that were neglected to be transferred into a trust will have to go through a probate procedure, though they may be able to go through a shortened process if you have a trust. With the exception of beneficiary designated life insurance and certain types of property ownership, family members will have to deal with some pretty complicated situations. For example, one scenario that could arise is if the loved one owned real estate in two separate states, two probate processes will have to occur: each in the state where property is owned. Of course, each state has its own laws and regulations surrounding probate, which for the average person can cause extreme confusion and stress. A properly drafted trust can avoid the multi-state probate process.
A probate attorney will know how to navigate these situations while guiding loved ones on the best route possible.
5. A Probate Attorney Can Help When You Need Probate to Determine the Legal Heirs
If the deceased didn’t leave a will, usually an immediate family member can file a Petition for Probate with the court for him/her to be appointed as the Administrator (the name for an Executor when there is no will). The Administrator will be tasked with providing notice of the probate hearing to all of the first and second-degree relatives. This provides them with an opportunity to appear at the hearing in support, to appear and object, or to file their own competing petition, requesting they be appointed Administrator instead of you.
When there is no will, the property will pass pursuant to the laws of intestacy under California Probate Code section 6401. It outlines the order in which legal heirs will inherit and what percentage of community and separate property they are entitled to.
Hiring an experienced probate attorney to advise you through this entire process and breakdown who will ultimately be entitled to what is important. If you are not a legal heir or the guardian of a legal heir, you may not want to get involved with this messy process. Either way, you should consult a qualified probate attorney in San Diego to help you make that decision.
6. A Probate Attorney Can Save Time by Speeding up the Process
In a best-case scenario, the probate process lasts anywhere from six months to two years. When individuals are going through probate without an attorney, the process can last several years due to lack of experience and knowledge. The reason is that California courts are facing the worst budget cuts in history resulting in significant understaffing. There are currently only three probate judges managing the thousands of probate cases in San Diego. If you file paperwork improperly, wait two to four months for your hearing, only to find out at the hearing that your paperwork is incorrect, your hearing will be continued another two to four months.
While probate attorneys aren’t magic genies, they can help by reducing the many obstacles that present themselves during this process.
7. Probate Attorneys Have Knowledge of the Technical Requirements
Serving as Executor is a challenging job. There are many rules and procedures that must be followed. Failure to do so can result in personal liability for the Executor can be held personally liable for making mistakes because they owe a fiduciary duty to the beneficiaries of the estate. It is certainly possible to get through the probate process yourself but be aware that the emotional stress of losing your loved one might make this challenging legal process too much to bear without help. Plus, you don’t want to make a mistake that could have negative repercussions. Your probate attorney has experience in the legal system and can make sure the finer technical details are accurate so you can focus on healing.
Find the Best Probate Attorney in San Diego
Meeting with a probate attorney will help to simplify the entire probate process while navigating you through it in a stress-free way. This attorney can give you as much or as little assistance as you’d like while ensuring you meet your fiduciary obligations as Executor.
How to Contact a Probate Lawyer
To find the best probate attorney in San Diego, it’s important to conduct research, read reviews, ask for referrals, and interview a variety of law firms. Dealing with probate during this difficult time is emotional and you want to make sure that the attorney you choose fits all of your needs.
Questions about the probate process or looking for legal advice? Call Kam Law Firm today.
Every person and case is unique, which is why our estate probate attorneys will give you the time and attention you deserve. If you are looking for an estate attorney in San Diego, please contact Kam Law Firm today at 619-535-1405.