What is Probate?
The term probate is often associated with expense, paid, delay, and suffering. In reality it is a court-supervised method of handling the property belonging to someone who has passed away. A probate is not normally needed if an estate plan was created which includes a living trust. In that event, a Trust Administration is needed instead.
While it is true that proper planning can eliminate the need for probate proceedings, once someone has passed away the opportunity for planning has passed and the only available avenue is often to conduct a probate.
During probate, a person will be appointed by the court to be in charge of the deceased person's financial affairs, property, assets, and debts. There is an orderly process by which the debts are addressed and remaining property is transferred to the heirs. Sometimes there are more debts than assets, and there is a process for dealing with that situation as well. The resolution does take time, but having a knowledgable probate attorney to guide the process can significantly reduce the time and aggravation typically associate with probate.
Does a Will Avoid Probate?
The existence of a Will is not a substitute for probate proceedings. A Will can only instruct the court on the proper distribution of assets. That distribution must still ultimately be ordered by the court and the court must first determine that the Will is valid. Just because a person is named as executor in the Will does not mean that person has any legal authority until the probate court officially orders the executor to be appointed.
Are there alternatives to Probate, even if there was no Estate Plan?
Sometimes there are alternatives which do not involve probate. These are available on a case by case basis in specific circumstances. Usually there is more flexibility if there is a surviving spouse who will inherit most of the property, or if the estate is small (less than $150,000 in value). The probate attorneys of Lopez & Wilmert, LLP can evaluate your situation for you and determine if probate is necessary or if one of the alternatives is available in your circumstances.
What is a Probate Contest?
Occasionally, more than one person wants to be appointed by the court to manage the estate of a deceased person. Sometimes the authenticity of a Will is questioned, or a claim is made that the deceased person lacked the mental capacity to create the Will. Other times, people are simply not happy with the terms of a Will. All of these circumstances, and others, can lead to a contest in probate court. The matter is then handled in a manner similar to a civil trial, with discovery, witnesses, evidentiary hearings, and an ultimate decision by a probate judge if no settlement is reached among the parties.
Cost of Probate
As with any proceeding which involves the court, there are costs associate with conducting a probate. The initial costs are normally for items such as court filing fees and publication of notices. It is illegal for a probate attorney to receive any legal fees from the estate until the probate is completely over and a judge approves the fees. The probate attorneys of Lopez & Wilmert, LLP are happy to discuss the entire situation with you and explain the process of conducting the probate, the costs involved, as well as the process of how and when the fees are eventually calculated and paid from the estate.
If you have experienced the loss of a loved one, and need assistance with navigating the legal process, please feel free to call our office at 619-589-1112 to arrange an appointment either in our La Mesa office or in our Chula Vista office.