Probate Attorney in Los Angeles

What Is Probate & When Is It Necessary?

Probate is the court process of transferring assets of a deceased person to his/her heirs. It is necessary when the deceased person died (1.) owning real estate in his/her name alone of any value; or (2.) owning personal property (financial assets) in the gross value of $150,000. If that is the case, probate is inevitable—whether or not the deceased person left a will.

How Probate Works

Probate is the court-supervised process of either “proving” a decedent’s last will or administering the assets of a deceased person who died without a will.

It involves appointing a legal representative of the estate by the probate court, as well as locating, valuing, and collecting the assets of the deceased. It also involves paying creditors, settling government debts (MediCal, IRS, FTB), and distributing the remainder of the estate to the rightful heirs (or will beneficiaries if a will exists).

When a decedent dies without a will, the court has to appoint an estate administrator. Usually, the next-of-kin will file a petition for probate to begin the process. There is a specific “order of priority” designated in the CA Probate Code as to who has the right to petition the court for probate.

When the decedent leaves a will, the document names an estate executor and instructs the court how the assets are to be divided. The named executor must “prove” the will by submitting it to the court and initiating probate.

Can Probate Be Avoided?

The only way a decedent’s assets escape probate is through a living trust. When the trust becomes the “owner” of all the assets of its creator on the creator’s death, nothing is left in his/her individual name to require probate. It is the trust (and not the probate estate) that determines who is in charge and who gets what. Trusts are administered privately, generally without any court involvement.

Probate and trust administration accomplish exactly the same goal—to pass assets from a decedent to his/her heirs—but in two dramatically different ways. Probate is the hard, long, expensive way and trust administration is the easy, quick, and much less expensive way.

Anatomy of a Probate Proceeding

There are many technical aspects of the court-supervised process of probate which are simply not an issue with administering a trust.

An oversimplified probate administration looks like this:

• The process begins with the filing of a probate petition, posting a formal notice in a newspaper to notify the estate creditors, posing bond (unless waived by a will), and a hearing at which an estate representative is formally appointed if no objections are filed.
• Next, the estate representative needs to serve all known creditors with blank creditors’ claims and invite them to partake in the estate assets. He or she needs to formally notify a number of state and federal agencies, have the estate assets valued by a court-appointed appraiser (known as the probate referee), and needs to prepare and file with the court an inventory and appraisal of the estate.
• After all creditors’ claims issues are resolved and paid, all of the decedent’s assets are collected by the estate, and tax returns for the decedent and the estate filed, a final account and report with proposed distribution of the estate is presented to the probate judge for formal approval and for an court order of final distribution.
• Upon remitting distributions to each heir and filing of receipts on distribution, the estate representative is formally discharged.

Each step of the way, there are costs, fees, and expenses involved. On average, without counting the bond expense (which can be tremendous), an additional several thousand dollars can be expended above and beyond the statutory attorneys’ fees.

Why You Need a Probate Attorney

Probate is very expensive. The probate fees are set in the probate code of CA (they are “statutory”) and are a percentage of the gross value of the estate. Probate is also a very technical, court-supervised, long and complicated process. Hiring a Los Angeles probate attorney with a lot of relevant experience makes a night-and-day difference between a long and costly probate and an expeditious, cost-efficient one.