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Probate Process in California: Why a Lawyer Is Necessary

Hiring an asset protection attorney Los Angeles can save countless hours, fees, and frustration for families going through probate. In an ideal world, an estate plan was implemented before the passing of a loved one, and probate can be avoided

Unfortunately, this is not always the case. If you're going through or about to enter into the probate process, call an estate planning attorney in California. This complex process is not one that you want to face on your own. 

Let's take a look at why having a lawyer is so important during the probate process.

What Is Probate?

Probate is, simply stated, a court-supervised process that transfers property title from the decedent, or the person who died, to their beneficiaries.

While there are several actions someone can take to avoid this court-supervised process, if they have not pursued these solutions prior to their passing, probate is usually required. 

Unfortunately, the process can be costly, time-consuming, and confusing. Several different scenarios can play out that may lead to increased costs as well as family discord. In Los Angeles and Orange County, obtaining a probate lawyer can reduce this conflict as well as the related stress.

Before filing your petition to start proceedings, it's always best to speak with a living trust attorney in Los Angeles to see if there is another option outside of probate.

While the decedent may not have prepared a living trust, they may have designated payable or transfer-on-death (TOP) beneficiaries in some accounts and for some assets. Joint ownership and joint tenancy may also keep some assets out of the probate courts.

At McKenzie Legal & Financial, our experienced estate planning attorney will review deeds, accounts, and any estate plans before helping you determine the best course of action.

What Does Probate Entail?

Determining the Estate Representative

The first step is to determine who the representative of the estate is. If the decedent left a will, they most likely named the executor who is, in effect, the representative. If there is no will, the court will appoint an administrator. This is usually the surviving spouse, legal domestic partner, or possibly the children.

It is not uncommon for families to disagree at this juncture of the probate process. Sometimes it is not clear who should be the representative, and heirs may have different ideas about who would be best suited and is entitled to the position. This may be due to a conflict of interests or long-standing disagreements. 

Having an asset protection attorney Los Angeles on your side during this type of conflict is vital. The representative bears tremendous responsibilities and should be chosen with utmost care. 

An estate representative is responsible for the following: 

  • Knowing and following through with their responsibilities. This requires knowledge of probate law and having an organized, responsible, and trustworthy character.
  • Keeping records of all assets and creditors.
  • Managing the assets until they are passed on to the beneficiaries.
  • Failure in their fiduciary duty may decrease the value of the estate and the representative can be held liable.

The Representative's Initial Tasks

After a representative has been designated, they must take control of the assets and keep them safe until they are distributed to the beneficiaries and the debts have been paid.

This may include making sure the house is secure, the mortgage and other bills are paid, the property is cared for, and all other valuable assets are in a secure location. 

They must look into account funds, life insurance, and other benefits, and determine if these accounts already have beneficiaries or if they will need to go through probate. If the person was receiving Social Security benefits, to prevent overpayment and possible fraud charges, the Social Security Administration must be notified immediately. 

Additional duties include canceling credit cards, checking safe deposit boxes for valuables and important documents, collecting the mail, and managing digital assets like online accounts. Many of these require usernames and passwords that, hopefully, the decedent left in a secure location.

The Franchise Tax Board (FTB) will need to be notified and the final tax returns prepared.

As you can see, the duties and responsibilities of an executor or estate representative are many. An estate planning attorney can help guide you through the process and handle any disputes that may arise. Should a dispute lead to litigation, a probate attorney can protect your interests.

Create an Inventory of the Assets and Identify the Beneficiaries

The next step is identifying the beneficiaries and heirs, taking an inventory of the assets, and determining the best route for the transfer of the assets.

Even if there is a will with named beneficiaries, the process is often clouded due to out-of-date documents or changes in the family that were not addressed. For instance, the will and beneficiaries may not have been changed after a divorce or remarriage. Another common scenario is that a beneficiary named in the will has already passed on. 

A complete inventory of everything the decedent owned also needs to be recorded. This includes all real property as well as personal property. Each asset should have a value, type of ownership, and if there is an outstanding loan on any assets. Additionally, a list of creditors and debts needs to be prepared.

Keep in mind, these are just a few of the many responsibilities that fall on the shoulders of an executor or estate representative. An asset protection attorney Los Angeles can ensure the all of these steps are completed according to California Law. 

Work with a Trusted Estate Planning Attorney

Many people accept the role of executor without knowing the responsibilities involved. Working with a trusted probate attorney can take much of the load off of the representative and reduce the length of the process. 

If the executor does choose to retain a probate attorney, the costs should come from the estate assets. Any unpaid costs or fees that need to be reimbursed will be paid from the estate as ordered by the court.  

We understand what you're going through. As a trusted estate planning attorney, we've helped numerous clients through the many complexities involved in probate.

Let us help you. For a complimentary consultation, contact us at McKenzie Legal & Financial today.

Thomas McKenzie Law
Estate Planning Attorney in California. Full-service law firm specializing in estate plans, wills and trusts, long-term care, and financial consulting. Thomas L. McKenzie received his Juris Doctor degree from Western State University College of Law, in Fullerton, California. While working full-time at night and attending full-time daily classes, Tom graduated law school with honors in 1993.

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