There may come a time when you may find yourself the executor, or personal representative, of the estate of a deceased loved one. This time is an emotional one and may be difficult to navigate. The California probate process can be extremely lengthy and intricate. Adding this onto an already emotionally charged time may make navigating the probate process difficult alone. First, learn a little more about probate, and then decide whether a lawyer is right for you.
What Is Probate?
Probate is the process in the State of California by which the courts grant the liabilities and assets of a deceased member of the previous generation to the next generation after their death. All the affairs of a deceased person are settled at this time, and the will is executed after any debts have been paid. A nominated person typically handles all the small details, and makes sure all the tangible and intangible assets are distributed among those indicated within a will.
If someone dies, and there is no will, also referred to as intestate, then assets are given to the next closest relatives. First, the courts ask if that person was married and, if they were, whether assets were separate property, community property, or both. If an asset is community property, then it is retained by the living spouse. The spouse may have to file what is called a spousal property petition to demonstrate ownership. Any assets that are separate property are assigned according to the law.
Probate in California
The general order of operations proceeds as follows: get in touch with the court, become assigned as the personal representative, present a will if one is available, catalog pertinent assets and an accurate valuation of assets, submit the valuation for approval by both the beneficiaries and the court, and finally distribute the assets.
The personal representative is also responsible for other tasks, including:
- Finding and managing probate assets
- Determining if there are any probate assets
- Paying any taxes on behalf of the estate
- Interpreting the will
- Paying any funeral bills
- Presenting the death certificate
- Closing the estate
These are just some of the additional tasks for which an executor is responsible. While these things can seem daunting, the entire process is typically spread out over a full year. Without legal representation, some of these steps may be easy to miss. You may not have all the tools necessary to complete the task, and there are likely many questions to ask during this endeavor. Whether you need help with deciding on your next steps or know you need a probate lawyer, our team can help.
What Makes California Probate Unique?
Each state has its own laws regarding probate, as it is an involved process. Timelines can vary greatly, asset distribution can be quite different, and even terminology can be quite different. Understanding probate can be a confusing and tricky burden.
The State of California has its own unique characteristics, including:
- Most people over the age of 18 are permitted to be the personal representative.
- The State of California doesn’t have a distinct court for probate proceedings, with the exception of San Francisco, called the San Francisco Probate Court.
- The executor of an estate is typically called the personal representative.
- California doesn’t observe the Uniform Probate Code that many other states use.
Is Probate Necessary in California?
Generally, probate is a requirement in California but not always. If the estate is a large one, it is more likely to have to go through probate. This is especially true if real estate is involved. Probate happens when the will isn’t clear, there are high value and complex assets, real estate is included, the appropriate heir is disputed, there are disagreements on how to split the assets, or the beneficiary or proper heir is a minor.
However, in situations where the estate is small, you could skip probate altogether. With a small estate administration claim, assets can be dispersed much quicker. To qualify for a small estate, the assets must total less than $166,250 and it has been 40 days since the death. It’s important to remember that assets include things like vehicles, real estate, and personal belongings.
Do I Need a Lawyer For My Probate?
The State of California does not require that you have a lawyer to submit all the necessary forms, so handling all the forms yourself is something you could certainly do on your own. However, if the estate is not a small one, there may be arguments over divisions of assets. Likewise, if the estate itself is very complex, having a lawyer will only benefit you.
While you may think that hiring a lawyer for your estate settlement process is unnecessary, they can help make the procedure move quicker and be less difficult for you. Lawyers who practice probate law have the tools in their arsenal to deal with even the most complicated situations and estates.
Another major benefit to hiring a lawyer is that they know when submission deadlines are and can assist you in making sure all the appropriate tax information is settled. Again, the bigger and more intricate the estate is, the more beneficial hiring a lawyer will be.
While it isn’t recommended to manage probate without an attorney, it is possible. If you think you can handle probate on your own, we can help you understand the next steps you should take. Keep in mind that you might be risking more than you gain by endeavoring to manage probate on your own.
Hiring the Right Lawyer Will Make All the Difference
For over a decade, Flanigan Law Group has provided excellent and experienced estate planning to clients across the Southern California region. Our focus on individualized planning and prioritizing the goals of each family or individual is our main concern. If you’ve been thinking about beginning the process of estate planning, don’t hesitate. Contact the Orange County Probate team at Flanigan Law Group today, and let us handle the planning for you. Our compassionate law firm can help with every step of this challenging process.