Typically, probate involves paperwork and Court appearances by representatives of the Estate (e.g., executors, special administrators) and their lawyers. Their fees and expenses are paid from Estate property which would otherwise go to the people who would inherit it. Their fees for ordinary services are paid at variable percentages established by the Probate Code, but their fees for extraordinary services are paid as deemed reasonable by the Probate Court. Some estates require an "ancillary probate" in multiple States and Countries.
How does the probate process work?
Probate usually works like this: After your death, the person you named in your Will as executor -- or, if you die without a will, the person appointed by a judge -- files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then, relatives and creditors are officially notified of your death.
Your executor must find, secure, and manage your assets during the probate process, which commonly takes a few months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them.
In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on. Then, eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners.
Who is responsible for handling probate?
In most circumstances, the Executor named in the Will takes this job. If there isn't any Will, or the Will fails to name an Executor, the Probate Court names someone (called an Executor, Administrator, or Special Administrator) as a Personal Representative of the Estate to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person's assets. If no formal probate proceeding is necessary, the Court usually does not appoint Personal Representative. Instead, a close relative or friend serves as an informal Personal Representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
Robert Burns at O. B. Law can help you process or resolve complicated probate cases.
In decades of practicing law in California, Robert Burns has handled a variety of probate cases. The death of a relative or loved one can be a time of great confusion, and I he will work to clarify the process for you, handle the administrative side of probate, and represent your inheritance rights if the situation warrants. Avoidance of litigation among inheritors in these matters is best, but your case will be handled completely with your particular needs in mind.
There is more to Probate Court than litigation over decedents' estates.
The trust drafting industry tends to sell trusts as avoiding probates and conservatorships and, thus impliedly, avoiding all litigation. Those sales pitches are unfortunate at best but many are simply convenient untruths.
Conservatorships are justified whenever the lack of capacity and need for management or supervision justify them and the need can easily rise beyond what any trustee has powers to fulfill.
A number of problems may arise over the life of a Trust requiring intervention by the Probate Court. Common problems are poor accounting and other mismanagement by Trustees, creditors asserting claims against the Trust, failure to transfer assets into the Trust as planned, poor lawyer drafting of Trust documents, loss of Trust documents, unforeseen events, and family feuds over assets and supposed inheritances not found in the Trust. Indeed, the Trust drafting industry as a standard practice drafts a "pour over Will" to compliment each Trust it drafts knowing full well that assets likely will be acquired by the persons with those Trusts after the Trusts are created and/or that assets fail to get transferred into the Trusts before death; some of those laggardly assets require a probate to be placed into their Trusts. And, when there are a Living Trust and surviving creditors' claims of a Decedent, there are valuable benefits to probating claims against the Trust to cleanse the Trusts of the cloud of potential claims.
The best ways to try to avoid unwanted litigation are to utilize good people, common sense, cooperation, and luck.
Probate court supervision of trusts
A number of problems may arise over the life of a Trust requiring intervention by the Probate Court. Common problems are poor accounting and other mismanagement by Trustees, creditors asserting claims against the Trust, failure to transfer assets into the Trust as planned, poor lawyer drafting of Trust documents, loss of Trust documents, unforeseen events, and family feuds over assets and supposed inheritances not found in the Trust. When there a Living Trust and surviving creditors' claims of a Decedent, there are valuable benefits to probating claims against the Trust.
A function of Probate Courts that essentially usurps that of Family Courts pertains to Guardianships. These are regularly issued over minors, often in favor of their grandparents, where necessary to care for minors or their assets and liabilities. But, the trump card is held by Juvenile Courts which can divest all other Courts of their jurisdiction and can even permanently terminate parental rights and effectuate adoptions.
Civil Courts and non-judicial Arbitration also can usurp some functions of the Probate Court in personal-injury and medical-malpractice litigation where the victims die before conclusion of litigation. In those proceedings, a representative can be appointed to assert the surviving claims of the decedent victims and, in the case of wrongful-death cases, the separate claims of their survivors.
Robert Burns has experience in related areas of law practice, e.g., elder abuse, conservatorships, guardianships, estate planning with living trust, testamentary trusts, wills, codicils, durable powers of attorney for health care, statutory form powers of attorney with respect to claims and litigation, personal and family maintenance, government benefits, tax matters, real property transactions, tangible personal property transactions, financial institution transactions, business operating transactions, insurance and annuity transactions, and estate plan transactions. However, where appropriate, such matters might be referred to attorneys expert in those areas.
For probate cases, contact Robert Burns today at (619) 223-0441 or by e-mail at RobertBurns@OBLaw.com. |
