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California Estate Planning: The Probate Process

UPDATED: January 6, 2020

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What is probate and how does it work in California? Traditionally, probate was a process that was used to prove that a will was valid in court. However, according to a California legal expert, the process has become a bit overwhelming - especially for those who decide to tackle it themselves.

What is probate?

Most people cringe when they find out that they're going to be involved in a probate action. However, that may be so because they don't really understand what it is. We asked Vincent J. Russo, a California attorney whose practice consists of estate planning and probate litigation, to explain it in simple terms. He told us, "From a practical standpoint, the main purpose is to transfer title to property, to prove a will if there is one, to collect any of the decedent assets and inventory those for the court in order to pass those assets onto the attended beneficiaries, resolve any outstanding creditor claims and to identify any heirs or people who would be entitled to a piece of your estate."

A sometimes challenging process

The process is a little bit overwhelming, according to Russo, who told us that there's a lot of paperwork and there are fees associated with the value of the estate. He explained, "Attorneys' fees are also associated with the value of the state and they give you a set percentage in California. It's a very small percentage, but it's a percentage and it adds up because if you have a million dollar estate, that's a lot of money. The process would be to file a petition, serve everyone and get letters issues. Once letters are issued, then you wait the statutory time period to do an accounting, you let the accountant do a final inventory and then file that with the court."

Russo says that other challenges arise when can't find someone or get them served and people may be disagreeing on all sorts of issues - which takes additional time and creates a great deal more paperwork. However, once the letters are issued, he says that the court will appoint an administrator and that person will manage the estate and the resolution of the probate proceeding. He explained what happens next:

After that, you will do the accounting, get a final accounting and eventually the court will close off on the probate - but it may take a while. That's why most attorneys will advise their clients that if they have substantial property that it might be in their best interest to do a trust and a will, but pour over the assets of the will into the trust, and that way your intended beneficiaries don't need court supervision, don't need to go to court and don't need to spend all of that money and file all of those papers to receive the estate. So, probate can be cumbersome and I have seen many people try to do it themselves.

Why hiring a lawyer makes sense

Russo advises anyone that's trying to do a probate themselves to just hire a lawyer. He explained why:

If they don't hire a lawyer, it will likely create a lot of headaches for them. Unfortunately, some people see lawyers as 'luxury items', but that's really not the case. 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. In addition, 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. In the end, the court will likely tell them to redo things and they are going to be spinning their wheels for quite some time and getting frustrated.

I would just advise them to hire a professional, they are all going to basically charge you the same amount for ordinary services because it's statutory in California, lawyers don't set the dollar amount for ordinary services. There are such things that are considered extraordinary services, which are treated differently. An example would be when people don't agree with everything and are fighting out their differences in court.

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

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