Probate

Probate Is A Long & Complex Process

At Porcar Law, we are committed to providing clear advice, honest treatment, and smart strategies. We aim to elevate your legal experience, helping you navigate this difficult process with compassion and expertise.

The loss of a family member or friend can bring feelings of uncertainty and anxiety, as well as grief. While you’re trying to cope and adapt to major changes, the added burden of dealing with your loved one’s belongings may seem overwhelming. In the midst of grief, you may wonder whether you can manage the details and complexities of handling the deceased person’s affairs.

At Porcar Law, we can help.

After a person passes away, their personal representative must handle their affairs, such as transferring belongings to heirs, paying debts, and settling taxes. Often, probate court proceedings are required before the personal representative has the authority to act on behalf of the deceased. Probate is a legal process that occurs after a person dies, where a will or estate plan goes through specific steps in court. This process includes determining the existence and validity of a will, identifying heirs or beneficiaries, assessing the value of the property, and managing financial obligations. Numerous steps must be taken in the correct order.

It is commonly believed that a will alone is enough to claim an inheritance and start handling the deceased person’s affairs. This is not true. In California, a will does not prevent probate and does not, by itself, give someone the authority to manage the deceased person’s affairs. Taking possession of assets and handling the deceased person’s affairs without probate can lead to prosecution. Personal representatives who fail to initiate probate and follow the proper steps may be held personally liable for resulting expenses and impacts on heirs. You cannot simply follow a will’s instructions without court involvement. Instead, a will is like a letter to a probate judge expressing the deceased person’s wishes. During probate, the judge decides what actually happens.

Probate is a complex and difficult process. Since a personal representative’s actions affect the legal rights of others, failure to properly carry out these duties can result in serious legal consequences, including personal liability. Courts are backlogged for months, and there is no end in sight given the budgetary constraints of the state and the aging population.

A personal representative may attempt to navigate the complicated and time-consuming probate process on their own, but this need not be the case. The services of a probate attorney are considered a benefit to the estate and are generally paid out of estate assets, rather than from the personal representative’s own pocket.

Porcar Law represents personal representatives (executors and administrators) of California estates in fulfilling their obligations and responsibilities while steering clear of potential pitfalls during the probate process. We understand that, for the families involved, probate is much more than just a legal process. We are committed to guiding clients through this challenging time with skill and sensitivity.

At Porcar Law, we aim to elevate your legal experience, providing you with the support and guidance you need during life’s most challenging moments.

If you have any questions or need assistance with probate, please don’t hesitate to reach out to us at Porcar Law. We are here to help you navigate this complex process with compassion and expertise.

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Frequently Asked Questions

Probate in California usually takes about 9 months to 1 ½ years, but can be longer depending on the complexity of the estate and any disputes that arise.

1. Determine if the Estate Must Go to Probate
– Consult a lawyer to confirm.
2. File a Probate Petition & Related Documents
– Start the formal process with California Form DE-111.
3. Schedule the First Probate Hearing
– The Probate Clerk schedules this after filing the petition.
4. Give Notice of the Hearing
– Notify potential heirs and publish notice in a newspaper.
5. Probate Hearing and Appointment of Personal Representative
– The court appoints a Personal Representative.
6. Receive “Letters”
– Obtain Letters Testamentary or Letters of Administration.
7. Post a Bond
– May be required to ensure fiduciary duties are performed.
8. Collect and Protect Assets
– Begin managing and accounting for the estate’s assets.
9. Inventory Assets
– Prepare an Inventory and Appraisal (Form DE-160).
10. Notice to Creditors
– Provide formal notice to creditors (Form DE-157).
11. Pay Valid Debts
– Pay debts from the estate’s funds.
12. Final Tax Return
– Prepare and file the deceased’s final tax return.
13. Second Hearing: Judgment of Final Distribution
– Judge decides on the final distribution of assets.
14. Distribute Assets
– Follow the court’s order for distributing assets.
15. Report of Real Property Sales
– File a report if real estate is sold.
16. Estate Tax Return
– Submit a final estate tax return if needed.
17. File a “Final Plan and Accounting”
– Report to the court on the estate’s handling.
18. File Final Receipts
– Show that everyone received their property.

Not always. Estates valued below $184,500 (as of 2023) can often bypass a full probate through simplified procedures, but there are still steps that need to be taken.

Assets solely in the deceased person’s name without beneficiaries named are subject to probate. This typically includes real estate, bank accounts and personal property.

Yes, probate can be avoided using trusts, joint ownership, payable-on-death (POD) accounts and other estate planning tools.

 An executor can be named in the will or appointed by the court. Their responsibilities include managing the estate, paying debts and taxes and distributing assets to beneficiaries.

When someone dies intestate (without a will), California’s intestacy laws determine how assets are distributed, typically prioritizing spouses, children, and other close relatives.

Probate costs include court fees, attorney fees, executor fees, and other administrative expenses. Attorney and executor fees are typically set by California law and are based on a percentage of the estate’s value.

A probate bond is insurance that protects beneficiaries from potential mismanagement by the executor. It may be required unless waived in the will or by beneficiaries.

Yes, probate can be contested on grounds such as invalidity of the will, undue influence, lack of capacity, or improper execution of the will.

California does not have an estate tax, but federal estate taxes may apply to larger estates. Income taxes may be due on income earned by the estate during probate.

Creditors must be notified and given a chance to file claims against the estate. Valid claims are paid before any distributions to beneficiaries.

The probate court oversees the administration of the estate, resolves disputes, and ensures that the executor follows legal procedures and the terms of the will.

Yes, small estates under a certain value can use simplified procedures, such as small estate affidavits or petitions for summary administration.

Assets held in joint tenancy or as community property with right of survivorship pass directly to the surviving owner without probate.

Duties include gathering and valuing assets, paying debts and taxes, managing estate property, and distributing assets to beneficiaries.

Debts are paid from the estate’s assets. If the estate lacks sufficient assets, debts may go unpaid, and creditors generally cannot claim from beneficiaries.

Real estate must be appraised and may be sold to pay debts or distribute assets. The sale often requires court approval unless specified otherwise in the will.

Generally, final distributions are made after all debts and expenses are settled. However, partial distributions may be possible with court approval.

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