If your loved one selected you to manage their affairs, you may feel overwhelmed by the legal process required to value and distribute their property. A skilled San Jose attorney can explain the structure of the estate, address unplanned gaps, and handle any disputes that arise.
Since 2011, the California probate lawyers of BoyesLegal, APC have helped trustees, executors, and personal representatives fulfill their responsibilities. We take a start-to-finish approach that focuses on the big picture and addresses your concerns head-on. Contact our downtown San Jose office today to speak with one of our team members.
The California Probate Process
During probate proceedings, the decedent’s will is validated, and the court appoints a personal representative to pay debts and distribute assets to heirs. These are the typical steps that uncontested proceedings follow:
- Filing the petition – A decedent’s relative, or the executor named in the will, files a petition to open probate with the appropriate county Superior Court.
- Notifying heirs and creditors – The court will set a hearing date to appoint a representative. Before this date, you must have someone not a party to the case notify the decedent’s heirs and creditors.
- Appointing a representative – If the decedent had a valid will or trust, the listed executor or trustee will generally be the representative unless they waive their responsibilities. Otherwise, the court appoints a representative based on a legally prescribed order.
- Inventorying assets – The representative appraises all assets in the estate and files Form DE-160 with the court. In California, court officers called probate referees appraise all assets except cash.
- Settling debts and expenses – Debts and final expenses are paid from the estate, provided that it has sufficient funds.
- Filing and paying taxes – The representative files the decedent’s final income tax return and pays any amount owed from the estate. In some cases, a separate estate tax may apply.
- Filing the final report – The representative usually has one year to file a final report detailing how they handled the estate. You may not have to file if everyone entitled to property from the estate signs a waiver.
- Closing the estate and final distribution – If the court is satisfied with the final report, the representative will distribute the rest of the decedent’s property according to plan.
The probate process can take a few months to complete in the most clear-cut cases. However, if the decedent did not plan their estate using wills or trusts, the process could be longer and more complicated.
What Is Subject to Probate in California?
Personal property, real estate, bank accounts with no beneficiaries, businesses, and intellectual property are all generally subject to probate in California. Other assets may be removed from the process and are easily transferred to beneficiaries if the deceased made the appropriate provisions.
Assets that can bypass probate include the following:
- Assets in a trust – Trusts can include any type of property. If the decedent named themselves the trustee while alive and appointed a successor trustee, the successor can manage and transfer the property without going through probate.
- Some retirement accounts – 401(k) plans and IRAs can bypass probate so long as the decedent designated a beneficiary.
- Transfer-on-death assets – Stocks and bonds can bypass probate if the decedent’s brokerage account has a transfer-on-death (TOD) beneficiary. Real estate deeds and vehicle registrations may also have transfer-on-death provisions.
- Payable-on-death accounts – If the decedent added a payable-on-death (POD) designation to their bank account, their named beneficiary can receive the money without going through probate.
- Jointly-owned property – The decedent’s jointly-owned property can transfer to someone with the right of survivorship. Your lawyer can explain the nuances surrounding these types of assets.
If the value of the estate’s real property and life insurance benefits is below a statutory cap, California may allow you to transfer property using a simpler affidavit-based method. Vehicles, out-of-state property, and property in a trust do not count toward the cap.
Probate Disputes
Even carefully planned estates are still prone to disputes. As trained and experienced trial lawyers, we can represent you through probate litigation matters such as these:
- Familial disputes over property – It’s common for family members to fight over who gets to keep heirlooms and sentimental property.
- Contested wills – Someone alleges that a will was created under undue influence, lack of capacity, or fraud.
- Ambiguous clauses – There are competing interpretations of a clause in the decedent’s will or trust.
- Misconduct – Someone alleges that the personal representative is violating their fiduciary duty or keeping inaccurate records.
- Ownership disputes – Someone alleges that an item shouldn’t be part of the estate, or that the decedent transferred it before their death.
How a Probate Attorney Can Help
You have many solemn responsibilities if you’ve been appointed a personal representative. As a fiduciary, you must put the estate’s and beneficiaries’ interests first and keep meticulous financial records.
Your attorney can help you through these and other challenges during the probate process:
- Understanding the estate – Estates can include complex assets, such as businesses, investments, or out-of-state property. Your lawyer can explain how the decedent planned their estate and advise you on the distribution process.
- Preparing documents – Probate filings and notifications are time-sensitive, and a representative may be personally liable for mistakes. Your legal team can help by verifying or preparing documents on your behalf.
- Defending your rights and actions – If a family member or another interested party disputes a decision you make, your attorney can represent you in probate court hearings and appeals.
Contact a San Jose Probate Administration Lawyer
The San Jose attorneys of BoyesLegal, APC take pride in handling complex estate-related matters with compassion and dignity. We are a small, woman-led team with deep knowledge of California’s probate courts and take a personalized approach to help you honor your loved one’s wishes. Contact our office today for a no-obligation consultation.