Probate

WHAT IS PROBATE?

Probate is a court proceeding to determine beneficial entitlement in an estate. This can include the determination of the authenticity or validity of a Will. Probate court is required when:

A house or other real estate,, bank accounts, or other assets such as stocks, bonds, mutual funds, brokerage accounts were not in a trust

The bank and investment accounts did not name a beneficiary, or

Another person did not own the house or real estate in joint tenancy with the deceased.

A Petition for Probate must be filed in the court in the county where the person died or owned property where the asset has no named beneficiaries assigned to it, and the asset was valued above $55,425.00, as adjusted periodically, for real estate inside California, or if the total personal property is valued at more than $166,250.00, as adjusted periodically.

The assets not counted in the adjusted $166,250.00 are life insurance or other assets (such as retirement plans) that pass by the beneficiary designation, or assets held in a Trust.

TRUST VERSUS PROBATE

ALL REVOCABLE TRUSTS

Can be changed or updated during lifetime
Avoids probate when fully funded with assets

MARITAL TRUSTS

This is revocable, too

For married couples with larger estates, usually between $10 to $22m; for those with children from prior relationships; or if this is not your first marriage
Requires an allocation of trust assets to an A, B and/or C subtrusts on the death of the first spouse. Allows for estate tax savings and preservation of assets for the intended beneficiaries of the first spouse to die.

PROBATE EXPENSES

Your successor trustee is tasked with managing the assets in your trust as they see fit. The successor trustee will do so until the time comes to transfer the assets to your beneficiaries.

For a revocable trust, this responsibility only kicks inonce you can no longer effectively serve as your own trustee. Once you die, your trustee must appraise the value of all the assets in the trust, determine and pay any tax liabilities and set aside a fund for any expenses that the administration of the trust may incur. If you named your trust as the beneficiary of any life insurance policies, your trustee will also need to collect those policies.

Let’s say your trust needs to exist for a long time after you die. In this case, your successor trustee will need to choose how the assets in your trust are invested and keep tabs on the investments. Once the time comes to close the trust, your trustee will be in charge of distributing assets to the proper beneficiaries according to the terms of the trust.

HOW TO AVOID PROBATE?

We recommend setting up a revocable living Trust and can help you draft all the other necessary pieces of a solid estate plan that will allow your loved ones to avoid the delays and costs of probate when you pass away.

HOW WE CAN HELP IN A PROBATE IF YOU NEED OUR ASSISTANCE

The Teal team at TLD Law will prepare and file the probate petition to appoint someone as the personal representative. We also handle all other required proceedings in court.

For example, we may file or defend a Will contest to decide who becomes executor. We deal with creditors’ claims and also give notice to creditors, and heirs, beneficiaries, and other people who are entitled to receive notice of the probate.

After all the various administrative tasks have been completed, we prepare and file a petition for final distribution. This petition reports to the court what the personal representative has done during his term of administration. The final petition accounts to the heirs for the assets and money that have come into the personal representative’s hands.

Ultimately, attorneys ask the court for an order authorizing and directing the personal representative to distribute the property according to the terms of the Will.

The probate attorney may further deal with other attorneys who assist in handling an ancillary probate if any property is owned in another state. Non-probate issues can also arise which require legal attention, like getting, receiving, or obtaining payment of life insurance and dealing with things like payment of annuities.

Intake form to email

CLIENT TASK LIST

1. Determine if probate is necessary
2. Decide if you need a lawyer
3. File the will and notify beneficiaries
4. Locate and manage assets
5. Handle day-to-day details
6. Establish a bank account
7. Pay expenses and taxes
8. Pay debts and notify creditors
9. Distribute property
10. Close the estate

Information on Probate Litigation

Probate litigation refers to the legal proceedings associated with contesting a Will, disputing a Trust, seeking redress for a breach of fiduciary duty, quieting title to a property, securing property that was wrongfully taken, addressing incapacity or undue influence issues, or tackling a tortious interference with expected inheritance claim.

WHAT IS PROBATE LITIGATION REALLY?