Understanding Probate Attorneys in California

Probate is a legal process in which the estate of a deceased individual, called a “decedent,” is identified, collected, and distributed to the heirs of the decedent under the supervision of a California probate court.

In a legal consultation in California with a California lawyer, the lawyer would be able to explain the process in detail.

Probate is not necessary in the case of every decedent. It should be part of an individual’s estate planning to determine whether or not probate would be required for their estate. This is something an individual would want to discuss with their trust and estate lawyer.

In the course of the probate process, the following is accomplished:

• The legal validity of a will, if the decedent left a will, is established.
• All of the assets of the decedent are identified, located, and inventoried. A written inventory and appraisal is prepared for the court.
• Any taxes owed by the decedent or their estate are paid.
• All debts that are owed by the decedent or their estate are paid.
• The assets are distributed to the beneficiaries named in the will, if there is a valid will.
• The assets are distributed to the heirs of the decedent per the laws of intestacy in California, if there is no valid will.

If a decedent does not leave a valid will, they are said to be “intestate.” If a decedent does not leave a will, the laws of intestacy in California determine who inherits the assets from the decedent’s estate.

Initiating probate requires someone, usually a relative of the decedent, to go to probate court and ask the judge to appoint a personal representative. The personal representative is the individual who represents the estate in the probate process and ensures that everything is done according to the law.

The person who is called a “personal representative” per California law may be called an “executor” in other states.

They would specifically be responsible for these tasks:

• File a petition for probate in the probate court in the county in which the decedent lived.
• Include a death certificate for the decedent and, if they left a will, a copy of the will.
• Notify the beneficiaries named in the will
• Provide notice to creditors so they can present their claims for payment to the estate
• Locate, identify and inventory all of the estate’s assets
• Pay the costs of the probate and the decedent’s legitimate debts from the estate
• Determine if any taxes are owed, complete tax returns and pay taxes owed
• Distribute the assets to the beneficiaries named in the will or the heirs determined by the laws of intestacy.

At each stage of the process, documents must be prepared, filed with the court and distributed to interested parties who are entitled to receive notice of certain events.

Of course, conflicts may arise in the course of probate. An individual or entity may claim that the will is not valid. Creditors may make claims for payment that there is reason to contest. There may be questions about the amount of taxes owed.

In situations in which conflicts arise, the personal representative must represent the interests of the estate and may have to hire a lawyer or lawyers to help resolve the issues.

What Is a Probate Attorney?

A probate attorney is an attorney who is hired by the personal representative to represent them, the personal representative, in carrying out all the tasks that the representative is required to perform.

A personal representative may not know what needs to be done or how to go about doing those things. That is when they need the help of a probate attorney. A probate attorney is an attorney who knows the probate process and how to complete it. They are familiar with all of the technicalities and legal documents required to complete the probate process.

The personal representative may hire a lawyer if they wish, but does not have to do so. California law sets the fees for a probate lawyer. They generally reflect a percentage of the total value of the estate. In addition, a probate attorney may be able to charge higher if the case is especially difficult.

A probate lawyer is usually paid when the probate is near its end from the money left in the estate after all of its obligations have been fulfilled. If the personal representative does not feel the need to hire a probate lawyer but has legal questions on occasion during the probate, they may be able to have a legal consultation even as they continue to represent themselves.

What Does a Probate Attorney Do in California?

A probate attorney represents the personal representative of an estate and manages the probate process for the representative. A probate attorney’s client is the representative and their obligation is to serve the interests of the estate and handle it as required by law.

How Much Does a Probate Attorney Cost in California?

As noted above, a probate attorney in California is paid out of the assets in the estate. Their fees are dictated by California probate law and are usually a percentage of the total value of the assets in the estate.

How Long Does the Probate Process Take In California?

A standard probate would take from 9 to 18 months if nothing unexpected takes place. However, probate could possibly take much longer. If a decedent has a large estate and left a will which disinherits someone who believes they should have inherited money from the decedent, the disinherited individual might challenge the validity of the will. It could become necessary to have a trial, and this could prolong probate by many months.

An individual must have standing to contest a will and generally 2 different kinds of people qualify as follows:

• Past and Current Beneficiaries: Beneficiaries are individuals or entities who stand to inherit money or property from the estate of the decedent because they were or are named in the decedent’s will. They have the right to challenge the will if they are a beneficiary in a current will or if they were a beneficiary in a former will, but were excluded from the current will.
• Individuals Who Would Have Inherited by Law: Individuals who would have inherited from the decedent under the laws of intestacy but were not named in the will may contest the validity of a will. Individuals who would meet this requirement would probably be close family relatives, e.g., siblings, who might have inherited under the laws of intestacy, which govern how an estate is to be distributed if a decedent does not have a valid will.

To contest a will, an individual must file a claim in probate court stating the grounds on which their claim is based. Legally recognized grounds for contesting a will are as follows:

• Invalidity of the Will: The will is not legal per the laws in California that establish the requirements for a will valid, e.g., it does not have the required number of signatures from witnesses to the will’s signing.
• Decedent’s Lack of Mental Capacity: The decedent was not of sound mind when they made the will.
• Fraud, Duress or Undue Influence: The decedent made the will or included some provisions as a result of fraud, duress or undue influence. Basically, this would mean that the decedent made the will because they were in some way defrauded or forced by threats or the influence of someone who used their power or authority over the decedent unfairly.
• Lack of Clarity: an individual might argue that the will is not sufficiently clear to allow a court to distribute the assets.
• New Will: An individual may present a newer will that they claim supersedes the older document and invalidates it either in whole or in part. They may claim that the decedent revoked the older will. Or they may show that the decedent made clear they did not want the old will to be followed.

Should I Hire a Probate Attorney?

If you are the personal representative of an estate and are responsible for probating that estate, you need to consult a California probate attorney.

LegalMatch.com can put you in touch with an attorney who knows the ins and outs of the probate process, which can get technical and complicated. They can guide a representative through the process and complete the probate in the minimum amount of time.