Probate San Diego

When a family is facing the emotional turmoil of losing a loved one, part of the process they need to handle involves the distribution of the individual’s assets. In many cases, this includes going through probate, which most people know very little about. It is helpful for anyone with questions regarding probate to understand they are not alone, and many others have asked the same questions.

What Is Probate?

When an individual passes away, their assets will be distributed according to state law if they didn’t have a will. This court-directed process is known as probate.

It may also be necessary to go through probate when the individual did have a will, and the process includes verifying the validity of the will, cataloging their assets and having them appraised, settling any debts they may owe, and distributing the remaining assets to their named beneficiaries.

Is It Necessary to Hire a Probate Attorney?

It is always advisable to have a probate lawyer on your side, as the process can be very complicated and has a significant margin for error. This is especially true when the estate has a high net worth. The benefits of hiring a probate attorney include having an experienced professional to help navigate legal waters and resolve any potential disputes that come up. If such a dispute requires probate litigation, an attorney can help protect their client’s interests and seek the most favorable outcome.

Is Probate a Long Process?

Settling an estate in probate court in San Diego County usually takes 12 months or more if there are no unusual issues or circumstances. This time frame includes a period of four months in which creditors can file a claim against the estate to cover debts the individual owed. At times, the process may take longer because the court is overloaded with cases.

Is Probate an Expensive Process?

The state of California has created specific guidelines for executor and attorney fees in probate, although the courts sometimes order higher fees if the case is particularly complex. The maximum fees set forth by the state are:

• Four percent of the first $100,000 of the estate
• Three percent of the subsequent $100,000 estate value
• Two percent of the next $800,000 of the estate
• One percent of the following $9 million
• Half of one percent of the next $15 million

When an estate is valued at $25 million or more, the court determines fees on an individual basis.

What Are the First Steps in the Probate Process?

Within the first 30 days after an individual passes away, the person who has their will is required to deliver it to the probate clerk’s office. A copy of the will must also be sent to the executor by the custodian of the will. If the custodian can’t locate the executor, a copy must be sent to one of the beneficiaries. The custodian can be sued for damages if they fail to complete these steps.

Who Administers the Estate If There Is No Will?

In probate cases where there is no valid will, the courts appoint an administrator to handle the estate. This is typically a close relative of the decedent, such as their spouse or domestic partner, a parent, sibling, or child. If a loved one wants to be the administrator, they must file a Form DE-111, which is a Petition for Letters of Administration.

What Duties Is the Administrator Responsible For?

Every situation is unique, but in most cases, the administrator or executor handles tasks such as:

• Handling assets of the estate. This involves identifying, finding, securing, and placing a value on the decedent’s assets as soon as possible after they pass away. Once this is done, the administrator must legally transfer the assets to the individual’s heirs or beneficiaries.
• Dealing with creditors. It is vital to notify any of the decedent’s creditors of the probate process that is taking place and then review any claims they submit.
• Resolving challenges to the will. If there are any major disputes, the administrator must oversee the litigation process to settle disagreements.
• Taking care of taxes. An estate tax return must be filed, and federal estate and gift taxes must be calculated and paid.

How Does a Probate Code 850 Petition Work?

This petition allows an individual to transfer property into or out of a trust. The benefit of the petition is that it may allow the person to pass their estate on to their loved ones without the need for probate. At times, however, property that an individual meant to transfer into their trust doesn’t make it there before their death. The state of California implemented Probate Code 850 to resolve this issue by permitting some properties to be transferred into a trust after the individual has passed away.

The following people can file CA Probate Code 850:

• A trustee of the trust
• The personal representative of the estate
• A claimant
• A guardian or conservator
• Any “interested” person

The code can be filed in the following situations:

• The individual passed away while claiming property that another person held.
• The decedent was in possession of personal or real property, but the property is claimed to belong to someone else.
• While the individual was alive, they bound themselves or their personal representative under a written contract to transfer or convey property once they pass away, and the contract is enforceable.
• While the decedent was still alive, they were bound under written contract to transfer personal property or convey real property, but they died before they could finalize the transfer or conveyance — and they would have finalized these processes if they were still alive.

Do All Assets Go Through Probate?

It is not necessary for all of an individual’s assets to go through the probate process. Specific assets that are not subject to probate include any that are held in a trust, real estate held jointly with right of survivorship, retirement accounts, transfer on death securities, payable on death bank accounts, and life insurance policies with designated beneficiaries. These types of assets automatically pass on to the beneficiaries, so there is no need for probate. Any assets that are named in a will are subject to probate.

Be Sure to Have a Probate Attorney on Your Side

If you have recently lost a loved one and have questions about the probate process, the best course of action is to put your trust in a reputable probate attorney. The legal professionals at Paul V.L. Campo, Attorney at Law, have the experience to guide you through this difficult process. Reach out to us today to see how we can help.