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California Probate – A Cost That Can Be Avoided

California Probate – A Cost That Can Be Avoided
Velasco law Sep 06 2019

Long Beach | Downey | Irvine

California probate is a legal proceeding required to settle a deceased person’s estate, paying all debts of the decedent, and distributing the property to the heirs and beneficiaries. Whether or not the deceased has a will, if the gross value of the estate is more than $150,000, then it must pass through probate in the California courts.

When a will is present, basic probate process starts by the executor filing the will along with a document called the “Petition for Probate;” without a will, a family member typically asks the court to appoint an administrator of the estate to do the same work.[i] When the court determines everything is in order, it will issue “Letters Testamentary” or “Letters of Administration,” appointing an executor and granting that person authority over estate assets. That person will then begin to gather and manage the estate. For example, creditors have four months to come forward with their claims according to California Probate Code 833.2.1.

Most probate cases in California are handled under the state’s Independent Administration of Estates Act, so that receiving permission from the probate court is not always necessary every step of the way. This means, the executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. However, according to California Probate Code 7261, selling real estate does require court approval. The probate process is not quick, taking at least 7-8 months, but typically closer to 9-15 months.[ii],[iii] Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That’s when the executor can distribute the estate assets.

Though probate law does not require anyone to use an attorney to settle an estate, these cases can quickly get complicated and having an experienced lawyer on your side me save you time, money and headaches. There are potential problems that can arise during a probate process, including but not limited to ambiguities in a will, contested claims against the estate, and estates that have more debts than assets or unresolved claims. Probate litigation is the process of challenging a provision of the Last Will and Testament, a codicil to the Last Will and Testament, the appointment of the personal representative, or the entire contents of the Last Will and Testament.[iv]

There are many reasons any or all of the content could be contested. Beyond that, the authority of the executor can also be called into question. The details of each dispute will depend on the reasoning behind each claim. For example, there may be a claim that the executor is lacking in mental capacities or under duress? Probate litigation may take place if there are guardianship disputes, the removal of trustee(s), a surviving spouse claims part of the estate, when someone involved does not believe the executor is providing adequate information, and for many other reasons. Because of the possibilities for conflict, probate litigation may be the only option. The Velasco Law Group has seasoned attorneys to either resolve conflict or vehemently defend your interests.

Estate litigation can be a nasty and expensive undertaking. Family drama is often quick to arise during conflict. The lawyers at Velasco Law Group can help resolve family conflict. If you are involved in probate litigation, their experienced attorneys will simplify the process and provide you with top notch representation. They are informed, diplomatic, and professionals who will diffuse drama, while representing your interests clearly, concisely, and effectively. Litigation can be an emotional roller coaster for everyone involved in the dispute, but the attorneys at Velasco Law Group will stay clear-headed and laser-focused on fighting for you.

The good news with litigation cases, is the option of settling disputes out of court. Once each party has had time to exchange information and go through the discovery process, both lawyers will discuss the strengths and weaknesses of the case with their clients. It may be appropriate at that point for one side to present the other with a settlement offer, which is a way to end the litigation without the time and expense of trial. That is a decision made entirely by the client. The lawyers from Velasco Law Group will at your side every step of the way. For a complimentary consultation contact us HERE


[i] https://www.nolo.com/legal-encyclopedia/california-probate-an-overview.html

[ii] https://apeopleschoice.com/california-estate-planning/california-probate/

[iii] https://www.thereporter.com/2019/07/07/elder-law-avoid-probate-by-holding-title-to-assets-in-joint-tenancy-with-heirs/

[iv] https://resources.lawinfo.com/probate/what-is-probate-litigation.html

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