Probate is a highly technical court-supervised procedure governed by the California Probate Code, the California Rules of Court, and the individual court rules adopted by each county. The process is carried out by the executor, when the decedent has left a will that names one or more executors, or an administrator, when the decedent dies intestate (without a will), each of whom can be referred to as the estate's "personal representative." The personal representative usually knows little about the requirements of the process, and consequently must work closely with an experienced probate attorney. The more experienced the attorney is, the smoother and more efficiently the probate process will be. As a practical matter, the attorney does most of the work associated with the probate proceeding. Mr. Hartman assists the personal representative in overseeing the process of terminating the decedent’s interests in his/her real property, as well as tangible and intangible personal property, in seeing that the legal responsibilities of the estate are fulfilled, and in completing the disposition of the decedent’s assets and the payment of decedent’s creditors in a proper and timely manner.
Whether or not a particular asset of the decedent is subject to probate may depend on the manner in which title to that asset is held. As examples, property held in joint tenancy, where there is a surviving joint tenant, property held in trust with a designated beneficiary, life insurance on the decedent’s life with a designated beneficiary other than the decedent’s estate, and certain retirement plans with designated individual beneficiaries, all do not require probate. Where an estate is of small value (according to standards set by statute), probate may be avoided in favor of a more abbreviated and faster means of transferring title.
In the administration of an estate, it is important to collect and account for the decedent’s assets, including any sums owed to the decedent, and to learn what obligations the decedent owed. It is also important to know whether the decedent received Medi-Cal benefits, as there may be a lien asserted against estate assets for those benefits. In a probate proceeding, the assets need to be formally appraised and an inventory, with the appraised values, is filed with the court. Debts and taxes need to be determined and paid. There is a process by which creditors can file claims in probate proceedings and, if necessary, the administrator/executor can contest or reject any of those claims.
Ultimately, the probate process will result in a court order for distribution, approving the actions taken by the executor/administrator, approving the accounting for all assets, income and disbursements of the estate during probate, and providing for how the estate assets are to be distributed to the heirs or beneficiaries. Often those assets are transformed during the course of probate, as real property, securities, autos, etc. may be sold when it is in the best interests of the estate, unless the decedent specifically directs that any of such items are to be given to one or more named persons. Such sales result in generating cash and greater liquidity for the estate, which often makes distribution of fractional interests among several beneficiaries easier.
There are costs associated with the probate process that can be explained by the attorney and discussed at the first conference. No initial consultation fee is charged by Mr. Hartman in a probate matter. Examples of costs that the probate estate pays include the court filing fee, publication charges for the notice of death/notice to creditors, fee to the probate referee for appraising estate assets, possible bond premium if a bond is required, attorney’s fees and executors commissions, both of which must be approved by the court.
WHAT YOU SHOULD BRING
TO THE PROBATE CONFERENCE WITH AN ATTORNEY
You should provide the full name of the decedent, and any former or other names used by the decedent. We will need at least one, and possibly multiple, certified death certificates, which may not be available at the time of the first conference. If the decedent was married, we will need the date and place of marriage, and full name of any surviving or former spouse. If there is a former spouse who died or from whom the decedent was divorced, we will need the date of death or divorce. Please provide names and addresses of all of the decedent’s children, parents and siblings, with birth dates for the children. It is also helpful to have the name, address and phone number of the decedent’s accountant or tax preparer.
If you can locate deeds to the real property owned by decedent, please bring them, although if you can’t find them, we can get copies from the recorder’s office. Please bring other documents evidencing how title has been held to the decedent’s assets, including securities or brokerage accounts, motor vehicles, bank accounts, etc.
We will need to file the original will with the court, so if you have located it, please bring it with you. Don’t worry if you don’t have all of this material for the first session. We can get acquainted during that session, determine what information needs to be gathered in the future and go over the probate procedure or any available alternatives.