At Feldman Law Group, we know how difficult losing a loved one can be, and we are dedicated to supporting you throughout the probate process. California law refers to the person who died as the “decedent” and the property and assets they owned as their “estate.” Our Walnut Creek probate attorney can guide you through the legal process no matter what your situation is and whether the decedent passed away with or without a will.
We can evaluate your situation and educate you on what the legal process entails and whether your loved one’s estate must go through probate.
What Is Probate?
Probate is the court-supervised legal process of validating a deceased person’s will and gives effect to the terms it lays out according to the decedent’s wishes. The word “probate” comes from the same Latin root as “prove” and “proof,” and indeed, entering a will into probate “proves” that it is the decedent’s valid and enforceable last will and testament. California law can also refer to the decedent as the testator in this case.
After approval of the will, the executor or administrator can then pay debts and distribute the decedent’s estate according to the terms of the will. The decedent may name an executor. The court assigns an administrator if the named executor is unable to perform the tasks or if the decedent designated none.
Before the distribution of assets, a myriad of other tasks, such as the following, requires attention:
- Notifying creditors of the probated estate
- Filing a final tax return for the estate
- Collecting and inventorying all assets of the estate
- Managing, selling, or liquidating estate assets as appropriate
- Paying debts or resolving claims against the estate
What Assets Do Not Go Through Probate?
California estates with a value of less than $166,250 may not require going through probate and can benefit from simplified processes that do not involve going to court to transfer assets.
Probate generally does not address the following types of assets:
- Accounts with a named beneficiary, such as retirements accounts or life insurance usually transfer to the appropriate beneficiary after providing a death certificate and proper identification to the financial institution.
- Assets held in joint tenancy with the right of survivorship usually go under the sole name of the surviving owner upon reception of a death certificate.
- Assets held in a living trust get distributed according to the terms the Trustor established.
Whether certain assets must go through probate depends on whether the decedent had a trust or not. If someone dies without a trust, probate will be required. If someone dies without a will, intestate laws oversee the distribution of the decedent’s estate. The laws of intestacy sets the order of priority among the decedent’s relatives and how much of the estate they will receive.
Probate Matters Feldman Law Group Can Assist You with in Alameda County
Being named executor for probate can be daunting, and our team is here to help you understand the process and respect the decedent’s wishes so you and the beneficiaries may achieve the division and distribution of all assets with a minimum of stress. We also assist beneficiaries involved in probate to understand their benefits.
Attorney Feldman can assist various types of individuals during probate such as:
- Other relatives
We understand the complexity of the process and we can help you at every step. Whether you are bringing or defending a claim, we can carefully assess your situation and help you establish the necessary documentation to move forward with probate. A small estate may complete probate in less than a year, but many estates take one to two years to go through the whole process.
How Does Feldman Law Group Help With Common Probate Matters?
It seems that no matter how thoughtful, careful, and thorough your estate planning is, some issue always arises during probate that was not foreseen at the time the will was prepared. With more than 35 years of legal experience in estate planning and probate in Alameda County, attorney Aaron Feldman is well-situated to provide sound advice and professional representation in your probate dispute, no matter how unique or complicated the matter.
A Walnut Creek probate and trust litigation attorney can help you resolve common legal problems such as:
- Multiple wills – People sometimes redraft their will or revoke an old will and write a completely new one. If the old will was not properly amended, revoked, or destroyed, it can create doubt, confusion, and disagreement over which is the true “last will and testament” that should be admitted into probate and given effect by the court.
- Invalid wills – Drafting and executing a valid will requires hewing to a strict set of statutory requirements in California probate law regarding the testator’s capacity and intent, the presence of witnesses, and other technical aspects of the statute of wills. A challenge or will contest that results in a will being declared invalid may mean there is no will at will, and property will pass according to the California laws of intestate succession.
- Fraud, duress, and undue influence – Even a will that appears valid on its face may be challenged by beneficiaries who believe a family member or caregiver exercised undue influence on a vulnerable testator, forcing the individual to make a will that did not truly reflect his or her actual wishes. As an experienced elder law and financial elder abuse lawyer, attorney Aaron Feldman provides valuable assistance when dealing with allegations of fraud or undue influence.
- Omitted heirs – A spouse or child who expected to inherit under a will but was left out either intentionally or unintentionally may challenge the omission as improper. California law provides an “elective share” to an omitted spouse except under a few specific circumstances. Wills involving blended families with children from a previous marriage may give rise to challenges by omitted or pretermitted heirs.
- Challenges to the personal representative – Beneficiaries of the estate may complain that the executor or administrator is failing to properly exercise his or her fiduciary duties as the personal representative of the estate, such as by failing to maintain the value of estate property during probate, or engaging in dealings that involve self-enrichment or a conflict of interest. These issues may especially arise when the personal representative is also an heir or beneficiary of the estate, making the resolution of disputes even more challenging and complex.