California Estate Planning: Creditors, Timing Issues & Avoiding Headaches In The Probate Process

The probate process generally involves more than most people think and it can be a difficult process for those who opt to go the road alone. To make that process a bit easier, we asked a legal expert to provide answers to some frequently asked questions.

California Attorney Vincent J. Russo

Vincent J. Russo, a California attorney whose practice consists of estate planning and probate litigation, provided us with answers to the following questions in a recent interview:

How do creditors recover for outstanding bills against the estate?

They have to make a claim to the probate. It gets published in the newspapers and many creditors may specifically look for it because they know people are going to pass away and they owe them money for whatever reason. The creditor would make a claim to the estate and that would just get resolved in the accounting. If it's a valid claim, they would get paid out of the estate when everybody else gets paid and when the title transfers to the property.

Is there a statute of limitations regarding probate?

No, I don't believe so. However, the longer you wait, the harder it is to litigate. For example, let's say that you and your brother are living 500 miles away from each other and haven't spoken in 10 years. Your mother has been dead for 10 years and transferred title to her house to your brother without your knowledge. So, if you waited to probate her estate for 10 years, you're going to have a problem.

Russo says that while you could challenge that, the odds of winning are slim as it is going to be hard to find witnesses at this point because you are going to need to find the person who prepared the document and all the witnesses. He added, "And [chances are that] your brother is going to fight you. He's probably going to mortgage the house at that point, so there might not be any equity left. So, you don't want to wait too long."

Avoiding headaches

Hiring an experienced estate planning attorney will likely save you from the headaches that are often associated with the probate process. Russo told us that while some people see lawyers as 'luxury items', that's really not the case. Having seen laypeople try and do it on their own, he told us why that can be difficult, "Probate proceedings require someone to spend a great deal of time in court, so someone with a 9-5 job will have to miss a lot of work. Along with missing work, documents are going to have to be filed so they are going to have to do all kinds of homework that they don't understand and I can almost guarantee you that they are not going to do everything properly."

Estate planning, which includes wills, trusts, health care directives and probate issues, is a complicated area of the law. Click here, if you would like to contact with an experienced California estate planning lawyer about your situation.