Gaining a strong understanding about probate and probate attorneys can help prepare you in the event you and your family have to go through the challenging, lengthy, and costly probate process. There are certain situations where probate can be avoided, but when it can’t, being prepared and meeting with a probate attorney in San Diego is one of the best things you can do for yourself.
A probate lawyer is a licensed attorney who advises Executors (personal representatives). They also know how to guide beneficiaries on how to settle the final affairs of deceased loved ones. What exactly do probate attorneys do? How can they help avoid probate? Kam Law Firm is here to tell you.
What is a Probate Attorney and What Do They Do?
Also known as an estate lawyer, a probate attorney represents and advises an Executor through the entire probate process. Additionally, a probate attorney will:
- Create a Will and Testament
- Advise on trust planning
- Name the of powers of attorney and medical powers of attorney
- Help with asset protection
- File the documents needed for probate court
- Provide guidance on income tax problems
- Request court permission for various actions
- Assist with the retitling of the deceased’s assets to the rightful beneficiaries
Probate attorneys are helpful as they are required to be well-versed in the probate state laws of where they practice, and at the very least, can act as a neutral third party whose goal is to ensure all of your wishes are properly carried out.
How Does the Probate Process Work?
Probate is the court process used to transfer the decedent’s assets (estate) to the rightful heirs and beneficiaries. It’s also during probate where the decedent’s debts are settled.
Probate is meant to protect creditors and beneficiaries. The entire process occurs in four steps:
- File a Petition With the Court: This petition will either admit the Will to probate and appoint the Executor if there is a Will or with no Will, the court will appoint an Administrator of the estate. Typically the Executor or Administrator is a spouse or child, but it does not have to be. Once appointed, they become the legal representative of the estate. After this, notice of the hearing must be published in a newspaper where the decedent died, and a copy of the Petition with a notice of the hearing will be sent out to all heirs (first and second-degree relatives) and beneficiaries (individuals named in the Will if there was one). This provides the legal heirs and beneficiaries the opportunity to object to the petition or validity of the Will.
- The Representative (Executor or Administrator) Must Give Notice to All Creditors Along With Taking Inventory of the Estate: In California, the personal representative is required to notify all known creditors. Within a certain time frame, any creditor can file a claim against the estate. Additionally, the Executor must file an inventory of all real property, stocks, bonds, business interests, and any other assets owned by the decedent at their death. California also requires an appraiser to value the assets.
- Estate and Funeral Costs, Debts, and Taxes Are Paid From Estate Funds: In this step, the representative decides which creditors’ claims are legitimate. From there, it’s the representative’s responsibility to pay them off along addressing any other bills from the estate.
- Legal Title of Property is Transferred According to the Will: Once the first three steps are complete, the personal representative petitions the court to transfer the remaining assets to the rightful heirs and beneficiaries. If the Will states that a trust is made for a minor, that is also done at this time. When the petition is granted, the court order will be used to transfer the property, stock and assets to the appropriate individuals.
Ensuring you have a properly drafted Will that’s up-to-date with your wishes, assets, and life situation, along with developing an organized list of debts, property, and other assets will help make this process simpler. However, creating a trust and avoiding probate altogether should really be the goal.
What Are The Duties of an Executor of a Will?
Being named Executor of an estate means that you are responsible for carrying out the wishes of the decedent. Typically this includes getting a copy of the Will and filing for probate, taking action to protect estate assets, setting up a bank account for incoming funds and pay off debts, taxes and bills, and distributing assets and property to the rightful heirs. In addition, the Executor will also have to complete the following:
- Notify the deceased’s banks, credit card companies, and other financial and/or government institutions
- File a detailed inventory list with the court outlining all assets in the probate estate
- Maintain the property until it’s distributed
- Represent the estate in court
If the Executor misuses or mismanages the estate funds and that results in a loss to the estate, the Executor will be personally liable. Although some Executors must be bonded, the beneficiaries can waive the need for bond (this is done to save money as the fee comes out of the estate assets), or the Will may waive bond. Either way, it’s important to name the right person as Executor of your estate.
Keep in mind that theperson you name as Executor has the right to refuse that role. That’s why your Will should name alternate Executors, otherwise the court will appoint the person that petitions (assuming no one objects and they are qualified). Meeting with a probate attorney in San Diego can help you to find and name the right Executor.
Do I Need a Probate Attorney?
While technically, you don’t need a probate attorney, hiring one can help to save you both time and stress. There are a lot of rules that must be closely followed throughout the probate process. Failure to adhere to these rules can result in removal of the Executor and/or personal liability. A good probate attorney will be able to advise and help in:
- Will creation
- Estate protection
- Conflict resolution
- Asset distribution (specifically assisting with assets that aren’t left in a Trust)
- Probate (a good attorney can even help you to avoid probate)
Additionally, this attorney will also help the Executor and Administrator in:
- Securing probate and non-probate assets
- Obtaining appraisals for the decedent’s property
- Preparing and filing probate documents
- Collecting life insurance
- Assisting with retirement plans such as IRA’s and 401(k)’s
- Settling the decedent’s final bills and debts
- Figuring out what (if any) estate taxes will need to be paid
- Filing final income tax returns
- Selling the estate property (if needed)
- Requesting court permission for different probate actions
If you want to avoid the expensive and lengthy public probate process, you’ll need the best probate attorney in San Diego. Start today with a free consultation from one of the best law firms in the area.
What Questions Should You Ask a Probate Attorney?
To find the best probate attorney, we recommend conducting research, reading online reviews of various law firms, and asking key questions during the initial consultation.
Some questions you should ask include:
- How long have you been a probate attorney?
- What is your hourly rate?
- Do you see any potential issues with my case?
- Will you be the one handling my case personally or will someone else in your firm handle it? If so, can I meet him/her?
- How long will it typically take you to return my phone call or email?
In addition to answering these questions, you’ll also want to pay attention to their communication style. Are they compassionate? Do you feel like they are a true advocate and will fight for your needs?
Do you have questions about probate? Need help creating a Will or Trust? Do you need to hire an estate probate attorney? Please call Kam Law Firm today at (619) 535-1405 to meet with one of our experienced probate attorneys in San Diego.