Probate and
Probate
Probate is the court-supervised process of marshaling, securing, coordinating, and finalizing one’s financial affairs after they have passed away. Some of the common probate issues include: notifying creditors and handling unpaid bills, collecting estate debts, organizing and selling personal property and real estate, dealing with unhappy beneficiaries or heirs, filing inventories of the estate's assets, and ultimately distributing the remaining assets of the estate.
There are many laws and rules to follow in the probate process. It can be overwhelming for a person who is trying to cope with the loss of a loved one. Many people simply do not understand all of the rules they must follow if they are in charge of the loved one’s estate. That is where we come in. As your advocates and advisers, we will help you navigate the probate process in the most efficient and pain-free way as possible.
If you find yourself a personal representative for the first time and don’t know what to do, or, if your family is facing a situation where a loved has died and you aren’t clear on the proper legal procedures, please give our firm a call to discuss how we can help you and your family.
Probate Alternatives
While probate is always an option, many people don't realize that a formal probate may not be necessary to administer your loved-one's affairs. We have the experience to recognize situations where it is possible (and advisable) to avoid the time an expense of going through a formal probate to transfer property. Some of these situations include:
– Property transfers to a surviving spouse.
– Small (low-value) estate property.
– Transferring property that should have been part of a trust.
– Joint tenants and community property.
– Financial accounts with beneficiaries listed on them
Trust Administration
A properly drafted and funded trust will generally avoid probate, and in California, trusts are private documents. Unless contested, a successor trustee is most likely not required to deposit the trust with the court for safekeeping, as one would with a will. The trust document need not be recorded with the county recorder, nor does it need to be filed with the probate court, unless litigation is initiated. However, there are necessary steps that may have to be taken to administer the trust once any one of the persons who created it dies.
When the creator of a trust, called the settlor, trustor or trustee, becomes incapacitated or passes away, the successor trustee who is named in the trust, has certain duties and obligations, called fiduciary duties, to fulfill. These obligations must be handled correctly in order to prevent unnecessary financial loss, to protect the trust beneficiaries, and to protect the trustee.
At Verity Law Offices, we have many years of experience and extensive knowledge of California law, which enable us to assist and support trustees/successive trustees in administering a trust.
We can offer guidance and assistance to the successor trustee in administering the trust in compliance with California law, taking steps as necessary depending on the situation and the complexity of the trust:
Steps Involved in Trust Administration:
– Heirs and trust beneficiaries may need to be notified.
– Trust assets must be identified and collected.
– Date of death values have to be ascertained.
– Potential creditors may need to be notified.
– Debts, taxes and final expenses may need to be paid.
– Trust accountings may have to be prepared and distributed in accordance with the trust.
– Personal income tax returns, fiduciary income tax returns and/or estate tax returns may need to be filed.
– A separate tax identification number may have to be obtained from the IRS.
– Distribution to beneficiaries has to be handled.
These are just a few of the steps that need to be addressed by a successor trustee. Needless to say, the issues faced by a trustee and successor trustee can be complex, and failure to handle them appropriately may result in costly litigation. The best way to avoid problems and court involvement is to seek an attorney’s counsel as to your duties as a trustee. At Verity Law Office, we are experienced with many different types of trust administration, including pet trusts and special needs trusts. We can take the time to talk with you about the law on trust administration, offering guidance to help you understand what actions to take.
Contested Matters (Probate and Trust Litigation)
Dealing with the death or illness of a loved one is very difficult. Any disputes regarding a will, trust or other aspects of an estate plan often exacerbates an already painful situation. When a person's will or estate isn't being administered properly or there are other legal issues that need to be challenged, a probate litigation attorney possesses the expertise and skills required to represent your interests. There is a range of legal issues often disputed in probate court. Some of the problems that need to be resolved may include allegations of fiduciary misconduct, questioning the validity of a will or trust or claims that a legal document doesn't accurately reflect the wishes of the deceased. A probate litigation attorney represents clients who need legal assistance with the following claims and objections:There is a range of legal issues often disputed in probate court. Some of the problems that need to be resolved may include allegations of fiduciary misconduct, questioning the validity of a will or trust or claims that a legal document doesn't accurately reflect the wishes of the deceased. A probate litigation attorney represents clients who need legal assistance with the following claims and objections:
– Individuals asserting their rights against an estate or trust.
– Disputes regarding the validity of wills or trusts.
– Contesting the ownership of property or assets
– Breach of fiduciary duty by an administrator, executor or trustee.
– Removal of trustee; and Creditors’ claims against an estate.
There is a distinct difference between attorneys who litigate probate cases and estate planning attorneys. An estate planning attorney is able to draft legal documents such as wills and trusts that indicate how a person wants their assets distributed or financial accounts managed. They also provide legal services that involve the administration of trusts and estates. A probate litigation attorney has an in-depth knowledge of probate laws and vast experience with civil litigation. They are better suited to represent clients when wills, trusts or estates are being contested. The probate litigation attorneys understand how to handle all aspects of civil litigation such as discovery, deposition, the rules of civil procedure and evidence during trials.
Contact a California Probate Lawyer
If you need assistance with a dispute regarding a trust or estate, schedule a consultation. One of our attorneys will evaluate your case and explain the legal options available to you. Call us today at: (626) 869-8787.