Probate Law in La Mesa
If you live in California and a loved one of yours dies, you will need to familiarize yourself with the term “probate.” Probate is also an important term to understand when you are planning for your estate, as the probate process and probate laws could affect how you store and allocate your assets. If you have questions about probate when creating an estate plan, or have recently been introduced to probate following the death of a family member, our experienced California probate lawyers at the law offices of Garmo & Garmo, LLP are here to assist you. Contact us today to schedule an initial consultation and learn more.
What Is Probate?
As explained by the website of the California Courts, probate is the legal process of:
- Determining whether or not the will of a deceased person is valid;
- Managing the financial responsibilities of the deceased (i.e. paying any debts of the decedent); and
- Distributing property amongst heirs and beneficiaries.
Because probate is a legal process, it is handled in the court system. While working with a probate attorney is not a requirement, it is highly recommended.
Is Probate Always Necessary?
Probate is typically considered an onerous, expensive, and long legal process, and one that most people do not look forward to. The good news is that not all assets have to pass through probate, and in some cases, probate can be avoided entirely. Whether or not you will need to go to probate court is dependent upon the amount of money that is involved, the type of property that is involved, and who is claiming the property of the deceased. For example, if the total personal property of the deceased person is valued at $150,000 or less, and you are the legal beneficiary of the assets, then you will probably not need to go to probate court. Instead, you may be able to use a simplified process to transfer the property to your name.
Further, other cases in which you may avoid probate court include when assets were left in a trust rather than addressed in a will, or when assets are owned in joint tenancy.
How Does Probate Work?
Probate can be a confusing process, which is one of the reasons that working with a California probate attorney is so strongly recommended. The process begins with the will of the deceased person being taken to the probate clerk’s office. This must be done within 30 days of the decedent’s death. A copy of the will should also be sent to the executor of the estate if they are not already in a possession of a copy. If there is no will, and no executor of the estate has been assigned, then an administrator of the estate will be appointed by the court.
Once the will has been submitted, the next step is filing a petition for probate (if you are the executor of the estate). There are different types of petitions for probate that may be filed, so it is important that you file that right one.
After the petition for probate is filed, things become more complicated. At this stage in the process, a hearing date will be set, notice of the hearing must be sent by mail to anyone who may have a right to the estate of the decedent, and a notice of the hearing must be published in the paper.
One of the most complicated parts of the probate process is preparing the Inventory and Appraisal form. This is essentially a list of all of the items of the deceased’s estate that are going to pass through probate, and a value of those items.
Next, notice to creditors must be given, a final income tax form of the deceased is prepared, and the probate court decides who gets what.
Disputes During the Probate Process
In addition to the fact that the probate process can be confusing, it is also possible for disputes to arise during the probate process. Some common examples of disputes during probate include:
- Lawsuits filed for the purpose of terminating a trust;
- Suits filed by beneficiaries against the executor of the estate for failing to act in accordance with the law of their duties;
- Lawsuits over guardianship (wills are often used to name guardians for minor children); and
- Lawsuits and challenges brought to determine whether or not a will is valid.
This list is not complete; there are numerous disputes that are possible during probate. Disputes are more common when the deceased party was married multiple times, has children from multiple marriages, died with a large sum of money or highly-valued assets, or there are personal issues between beneficiaries.
If your deceased family member leaves behind considerable assets upon their death, avoiding the probate process can help save time and money for your family. Typically, probate proceedings can stretch anywhere from 9 months to 3 years in a court of law. Since the probate court proceedings are public, your family faces a loss of privacy to add to the trauma of losing a loved one.
Estate taxes imposed on the transfer of assets in probate can amount to a significant portion of the property value, thus making the probate court a very expensive proposition for you and your family. With the proper use of estate planning tools, a competent California trust attorney can ensure that the probate court imposes estate taxes only on assets above a particular threshold.
Setting up a living trust is the best recourse to avoid probate in California.
Strategies For Avoiding Probate Litigation
There are many steps you can take to avoid probate litigation. These include:
Create a Comprehensive Estate Plan While You Are Healthy
One of the biggest mistakes you can make with respect to estate planning is to wait until you are old or until you are diagnosed with a serious medical condition to create an estate plan. If your age or health condition makes it harder for you to communicate effectively with your family, they might suspect that your caregiver or any other third party might have influenced your decisions or that you lacked the testamentary capacity to create an estate plan in the first place.
To avoid such problems, create an estate plan as soon as you can – even if you think you are too young to do so.
Do Not Include Any of Your Beneficiaries in the Estate Planning Process
Including a beneficiary in the estate planning process can be a recipe for disaster for two reasons.
Firstly, the beneficiary in question might try to influence you in any way they can in order to get a larger share of your wealth. As a result, you might end up giving them a larger share than what they actually deserve, which would be unfair to other beneficiaries.
Secondly, even if the beneficiary in question happens to be honest and well-intentioned, other beneficiaries might still suspect that you created the estate plan under the influence of the beneficiary whom you consulted with.
Either way, you can expect one or more beneficiaries to challenge the validity of your will or trust on the grounds of ‘undue influence’. This is precisely why you should avoid seeking inputs from any of the intended beneficiaries while creating your estate plan. The only person who should assist you with your estate plan is your estate planning attorney.
Choose the Right Person as Your Executor or Trustee
Choosing the right person to administer your estate or manage your trust is extremely important, as it can avoid probate litigation to a great extent after your death.
You need to consider the following factors while choosing an executor or trustee.
- Are they competent enough to manage your estate or trust?
- Is the person willing to act as the executor or trustee?
- Are they honest, trustworthy, and responsible?
- Would that person’s appointment and authority be questioned by any of your beneficiaries?
Also, make sure you designate a successor or alternative so that they can take care of your trust or estate if the originally appointed executor or trustee is unwilling or unable to do their job.
Talk to Your Beneficiaries
Once you have created a comprehensive estate plan, talk to your beneficiaries and make sure they know what they stand to inherit in the event of your death. Some of them might be happy, some of them might be satisfied, and some others might be upset with your plan. Nonetheless, you need to let them know what your goals are, why you have created the estate plan, and why you believe it is the best way to manage and distribute your assets.
Even if some of the beneficiaries do not agree with you, they should know that you created the plan entirely out of your own will and were not influenced any third party.
How Our Experienced California Probate Attorneys Can Help
At the law offices of Garmo & Garmo, LLP, we understand the emotional and financial difficulties of losing a loved one. What can compound those difficulties is having to go through the probate process on your own and without an understanding of California probate law, especially when a dispute arises. Our California probate attorneys are not only highly experienced in California probate law, but they are also skilled in dispute resolution. We can aid you in pursuing or defending yourself against a probate lawsuit, and are not intimidated by the prospect of going to court. We have years of probate litigation experience under our belts, and have a track record of success.
Contact Our Probate Law Firm Today
At Garmo & Garmo, LLP, we promise to provide you with the personalized experience you are expecting when you hire a legal professional. We have been serving clients in La mesa and surrounding areas of California for more than 20 years, and have provided tailored legal strategies that get results. If you have questions about the probate process, we can provide you with the answers and representation that you are looking for. To request a free consultation from our law firm, or to ask a legal question, please send us a message using the form on our website. You can also call our law offices directly.
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