Probate

Probate Law

Probate is a legal process that validates a will (if the decedent had a will), appoints a personal representative to administer the estate, and oversees the distribution of the decedent's assets.  If a decedent died without a will, his or her assets will pass according to California law.  

Probate includes the following stages:

• A court determines the validity of the will of a deceased person, or that a person died without a valid will ("intestate").
• A court appoints a personal representative (who will be known as an executor or an administrator, depending upon whether the person died with or without a will).
• The personal representative notifies known creditors of the death and the time limits for making a creditor's claim.
• The property of a deceased person is identified, inventoried, and appraised.
• Outstanding debts and taxes are paid.
• The remaining property is distributed as outlined in the will, or according to California law.

Typically, if there is a will, it names an executor who serves as a personal representative. The executor is in charge of estate management and following probate procedure. However, until the executor is formally appointed by the court, this person has no authority to act as personal representative.

If there is no will, or if no executor is named in the will, or if none of the named executors are able or willing to serve, the probate court appoints an individual known as an administrator to act as personal representative.

In California, probate hearings are held in the Probate Department of the Superior Court in the county in which the deceased person was living when they died.

Probate Litigation
It is possible for someone to file an objection to a will. When this happens, a process known as a will contest begins. In order for somebody to initiate contested probate, they must hold a stake in the outcome of the will. Although loosely defined, examples of such individuals are:

• A spouse or child who was not included in the will.
• A child who receives a less equitable share of the estate than a sibling.
• An heir or beneficiary who benefited more from an earlier will.

Common reasons that a court will find a will to be invalid include:

• The will does not adhere to state law.
• The will was forged.
• The decedent was of an unfit mental state when the will was executed.

If you decide to initiate a probate contest, we recommend that you hire an experienced probate attorney. The lawyers at Vaught & Boutris will be happy to discuss your options with you.
 

Probating a Will

Probate is a legal process that validates a will. While it is usually straightforward, certain circumstances may arise that call into question the terms of a will. In the case of a will dispute, a probate court hears arguments concerning its validity. If it is declared invalid, the court then decides how the assets it names will be distributed.

During the probate process:

• A court determines the validity of the will of a deceased person.
• The property of a deceased person is identified, inventoried, and appraised.
• Any outstanding debts, creditor claims, and taxes owed by a deceased person are paid.

The property that remains is distributed in the way outlined in the will. This process is usually overseen by an executor who is named in the will.

Even if there is no will, probating still must occur. In this case there is no executor, and that duty is often filled by a court-appointed administrator. The executor or administrator (called the personal representative) is responsible for handling applicable estate taxes. 

The entire probate process could take anywhere from a few months to years, depending on the circumstances. In the case of a contested will, the process can be quite lengthy.

The attorneys at Vaught & Boutris are experienced in matters related to probating a will and would be happy to discuss your options with you.
 

Wills and Probate Attorneys

Although it may be an uncomfortable topic, executing a will is one of the most important actions you can take during your lifetime. By thoughtfully assessing your estate while you are still alive, you have the peace of mind knowing that when you pass away, the people and things that you care about will be protected.

Why Consult a Wills and Probate Attorney?
Obtaining legal advice and representation regarding your will can be beneficial in many situations, including the following:

• Your estate consists of considerable assets and requires tax planning to mitigate the effects of estate tax.
• Your plans are more complex than just naming people to inherit property.
• A beneficiary requires long-term care.
• The will is being contested, or you have concerns about somebody contesting the will.

Probate can also be a difficult situation to navigate, particularly if someone died intestate (without a will), no executor is named, or a will is contested. You may also need help understanding probate laws and procedures. Other complicated situations may include:

• There are complex tax situations regarding distribution of assets.
• There is excessive debt on the estate.
• There is uncertain or unclear wording in a will.
• Property has been left to a minor.

You may also elect to establish a living trust, thereby avoiding probate altogether. In all these cases, working with an experienced wills and probate attorney can be very helpful. 

Vaught & Boutris can handle your wills and probate work with expertise, tact, and sensitivity.  If you’d like to learn more, our attorneys would be happy to speak with you.