We understand the passing of a loved one or friend is a difficult time. Far too often this difficult time is made worse by issues that arise in the estate of the loved one or friend. The last thing anyone should want to cause is a dispute among heirs and beneficiaries. The loved ones will needs to be handled properly from day one and our San Mateo probate attorneys will make sure of it. We are proud probate attorneys in San Mateo County. Please give us a call at 1-877-963-9543 to schedule an appointment.
One of the most important parts of administering a will or trust is transparency. The personal representative of the estate or trustee of a trust has a fiduciary duty to heirs and beneficiaries to keep proper records, produce an accounting, follow the instructions of the will or trust and more importantly act in the best interest of the heirs and beneficiaries.
THE PROBATE PROCESS
Probate is the court process of transferring assets when someone who passes away. If assets are not held in a trust, then the loved one or friend’s assets may need to be probated. To begin the process a probate petition needs to be filed with the court. A personal representative is appointed by the court and is usually called the executor or administrator to take care of the deceased person’s estate. If the will includes the name of the person who is the executor or administrator, then that person is usually appointed the personal representative. Notice of the petition must be published and notice must be sent to the parties entitled to receive notice. In some cases a bond must be filed to protect beneficiaries from loss or fraud by the personal representative or executor.
There are a number of issues that can arise in the probate process. A common issue is when the deceased person has outstanding debts at the time of their death. Who gets paid and who does not get paid from the estate or in what order? A claim must be filed and the claim may have to be disputed. Another common issue is what beneficiaries are entitled to receive if specific instructions are left regarding specific assets. Hopefully the probate process will last less than a year, but it is more likely that it may take more than a year to resolve all issues.
WHAT IF THERE IS NO WILL?
If someone passes away and they do not have a will then intestate succession takes over under state law. In California Probate Code §§ 6400-6414 provides the order of who inherits and when. See the attached California Intestate Succession Chart.
FEES IN A CALIFORNIA PROBATE CASE
There are a number of potential fees in a California probate case. Our San Mateo probate attorneys and probate attorneys in San Mateo will discuss these fees in more detail during your appointment. Generally there are fees paid to the executor, publication fees, bond fees and attorney fees. Our attorney fees are set by statute and represent a percentage of the size of the estate that is probated. Normally all of these fees are paid for by the estate. Some probate attorneys will advance some fees such as court costs and publication fees.
WHAT ABOUT DEBTS THAT ARE OWED WHEN A PERSON PASSES AWAY?
If the person who passes away has debts the creditors are given notice of the probate petition and in theory any other creditors receive notice by the publication of the petition for probate too. A creditor may then file a claim in the probate case and the claim can be disputed. If the claim is not paid in the probate case the creditor may sue the estate to try and get their claim paid. The filing of the lawsuit could delay the closing of the probate estate.
