Answering Your Questions About Probate And Trusts

One fear most people have when it comes to resolving the estate of a loved one is probate. Probate law has a – not entirely undeserved – reputation for being complicated, emotionally draining legal and costly situations. However, minimizing the stress and difficulties you experience in probate is possible.

At my firm, The Law Office of Philip M. Flanigan, P.C., I work diligently for clients throughout California to resolve their difficulties in probate law. When you have a probate issue, you may be in a highly vulnerable legal position, but I am a guide for clients in probate and trust administration. I want to educate you on what is ahead, so you can have the confidence to move forward.

What is probate?

Probate in California is the court process where a person’s final affairs are settled through an administrative, legal process. Among the many tasks, the probate court must:

• Validate the will
• Settle the debts of the deceased
• Confirm the personal representative
• Oversee distribution of the estate assets

The purpose of probate is to administer the estate and handle the final affairs of the deceased individual. Someone has to manage the assets or debts, and property needs to be transferred.

Much of this responsibility falls upon the estate executor. They are given the authority to access financial accounts and pay off final debts, for example. After doing so, they can inventory the remaining assets and divide them appropriately among the beneficiaries. This process is carried out either in accordance with the estate plan or, if the person passed away intestate – without an estate plan – according to state law.

Another key step is distributing the appropriate estate planning documentation to the beneficiaries. A will reading is no longer necessary, as the estate executor can distribute copies of the will to the interested parties.

Common Probate Challenges

There can be challenges during probate, starting with a will challenge or will contest. To challenge a will, someone must have legal standing, meaning not just anyone can do it. Typically, this includes a beneficiary listed in the will, someone who was included in a previous version of the will but was later removed, or a direct descendant who would inherit under state law if there were no estate plan. Additionally, creditors may challenge the estate plan if they are owed significant debts that have not been paid.

Challenges can also arise when distributing assets, paying debts or paying taxes. It’s important for the estate executor to understand the proper order in which these tasks must be completed to avoid violating anyone’s rights. For example, taxes and debts often need to be paid before assets are distributed to beneficiaries. If the executor or beneficiaries handle this incorrectly, it can lead to serious legal hurdles. In some cases, beneficiaries may also challenge the estate plan if they disagree with the distribution of assets.

Can I avoid probate?

Every estate will go through potentially probate, but not every asset will. Certain important assets such as life insurance policies, trusts and joint accounts – with right of survivorship – do not undergo a probate process.

If your estate plan is comprehensive enough, you may be able to assign many assets to a trust and avoid probate for much of it.

What is a trust?

A trust functions similarly to a will in that you can provide directives and guidance for your heirs. However, upon your passing, a trust is a legal entity – not a document. When you assign assets to a trust, the trust dictates who has the authority to deal with them. Because there are always persons who can sign for the trust, assets owned in the name of the trust do not go through probate. It is a powerful vehicle for dispersing assets to heirs.

Examples of common trusts include:

• Revocable trust: These can be changed or revoked during the creator’s lifetime.
• Irrevocable trust: These are binding from the moment they are created.
• Charitable trust: These set aside assets to be passed to a charitable organization.
• Special needs trust: These protect an individual with special needs who may be eligible for certain benefits. Directly giving them assets could jeopardize their eligibility, but placing the assets in a trust can help avoid this issue.

My team can help you determine which type of trust is best for your situation.

How long does probate take?

In California, the law dictates that the personal representative ordinarily has one year to complete probate, once appointed. There are some circumstances where they can have up to 18 months. However, if there is a dispute or a will contest, the process can take much longer.

Answering Your Questions, Pursuing Your Goals

I have more than 30 years of experience handling all matters of probate and trust administration. These matters are complicated, but my service isn’t. I try to take on your legal troubles and resolve them quickly, efficiently and compassionately.

Call me at 559-282-0232or send me an email to schedule a meeting.