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What Happens When Probate Cannot Be Avoided?

Can I Avoid The Probate Court Process After The Passing Of A Loved One?

Much of the work that we do at our firm focuses on helping people to put in place comprehensive estate plans that prevent loved ones from having to deal with probate after the death of a family member. By analyzing each family’s asset profile and providing guidance as to how to transfer ownership of their assets to the trust, or re-designate beneficiaries, our goal is to ensure that all trusts that we create keep the family out of court. However, we are often contacted by people who have just lost a loved one. The person who passed away either did not create a trust, or did create a trust but never got around to transferring ownership of their assets to that trust. It falls to us to break the news that accessing the assets of the person who passed away is not going to be possible without first going through the grueling probate court process. In California this can easily take 18 months or longer. At a time when families are grieving, this is the last thing they should have to deal with.

To commence the probate process, the first step is to ascertain whether or not there is a will. If there is, the people specified in the will will inherit the assets. The will also names the executor, often a close relative of the person who passed away. A petition must then be filed with the court to have that person appointed as executor. If there is no will, anyone can petition the court to be the executor, but priority is given to the closest relatives. Preparing legal documentation and making court appearances often prove overwhelming for grieving families; this is where we are able to step in to take the strain.

Some common scenarios where the Executor of the Estate will often need attorney support during the course of the probate proceedings:

Sale Of  The Property
It is often the wish of the Executor and other beneficiaries to sell the real estate owned by the person who passed away (the decedent). Appraisals need to be conducted and court approval may be needed, depending on the circumstances. The requirements of the Probate Code must be followed when contemplating the sale of real estate that is subject to probate.

Family Members Living In The House
Whether or not the intention is to sell the decedent’s real estate, complications can arise where a family member is living in the decedent’s house. It may be that this family member was the decedent’s caregiver, though this is not necessarily the case. Questions often arise as to who is going to pay the mortgage and other house related costs and expenses. If the person living in the house cannot afford to pay these costs, the Executor may choose to pay them and then get reimbursed from the Estate. In some cases, the Executor may wish to have the family member removed from the property. Record keeping is critical in this situation, as is clear communication between the Executor and the family member living in the house. It is important that the Executor is clear as to what he or she can and cannot do from a legal standpoint.

Reverse Mortgages
Real property that is subject to a reverse mortgage requires special care and attention during the probate process. If the family intends to pay off the mortgage with the sale proceeds, lenders will typically require that the house is sold within a maximum of one year from date of death. Keeping to that timeline while also navigating the probate process and keeping the lender informed along the way is often a balancing act for the Executor.

Distributing Personal Property
In the absence of specific instructions in a will, the Executor is ultimately responsible for deciding how to equitably distribute personal property, such as jewelry, to the beneficiaries. This is an aspect of the probate process that can become contentious, as family members reveal unexpected fondness for one item or another. Executors need to ensure that beneficiaries are treated fairly during this process.

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The legal duties imposed on Executors in California are extensive. They must ensure that creditors and taxes are paid; they must gather up the assets of the decedent and transfer those assets to the correct beneficiaries as required by the will or by law; they must keep beneficiaries reasonably informed as to how the probate process is progressing. Executors are responsible for protecting the best interests of the beneficiaries. In California, Executors are held to a strict fiduciary duty. That means that the way the Executor administers the estate must be fair, honest, impartial, and of benefit to the heirs of the estate, not to the Executor. Executors that fail to discharge these responsibilities as required by law can be held personally liable. Traps for the unwary abound. Our role is to help Executors to avoid those traps.

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