San Jose Probate Attorneys

Helping Clients Understand the Probate Process

Whether you’re preparing an estate plan or were appointed the executor of a loved one’s estate, you’ve likely heard about the probate process. This is a complex legal procedure that families often have to navigate after a loved one passes away so the beneficiaries can get their rightful assets. Like most legal processes, probate can be intimidating to go through alone, so it’s best to get advice from a San Jose probate attorney before preparing for probate court.

At Trust Law Legacy Group, APC, we realize how time-consuming and expensive probate can be. This is why we strive to help clients across San Jose avoid probate whenever possible with proper estate planning, such as creating a revocable living trust or using beneficiary designations for certain assets. We can also assist executors with probate court when necessary. So, whether you need probate administration services or want help developing an estate plan that meets your unique goals, contact our San Jose law firm for a consultation with experienced attorneys.

What Is Probate?

It’s important to understand what probate is, especially if you recently lost someone whose estate you’re supposed to administer. To start, probate is the legal process by which a court oversees the distribution of a deceased person’s assets and settles any outstanding debts or claims against the estate.

After all, when a person dies, their assets – such as property, bank accounts, investments, and personal belongings – become part of their estate. The purpose of probate is to ensure that these assets are distributed according to the deceased person’s wishes or state law if there is no will.

The probate court does this by determining if there is a will and validating it if there is. At that point, the executor is expected to locate all assets and debts within the estate, determine their value, identify the beneficiaries, and ensure all creditors are paid before distributing the assets according to the will. Only after all these steps are complete can you close probate.

This process typically takes between 12 and 18 months to be complete, though larger, more complicated estates could take up to 24 months. So, if you’re a beneficiary, you should expect to wait at least one year to get the assets left to you by your family member. Keep in mind that it could take longer if you or other beneficiaries initiate any will contests that require probate litigation.

If you’re the executor of an estate, you’re supposed to start probate as soon as possible, typically within weeks of finding out that your loved one has passed away and you were named the executor. If you’re unsure how to start this process, contact our San Jose law office for legal guidance from a skilled probate attorney.

Is Probate Always Necessary?

Probate is a common legal process that frequently occurs after someone’s death. However, it is not always required, as some individuals use estate planning services specifically to ensure their family members don’t have to go through probate before taking possession of their assets.

If you’re an executor and want to know if you must initiate this legal process after your loved one’s death, you should talk to a San Jose probate lawyer to get an accurate answer. In general, if the decedent owned real property in California in their name only and their total estate is worth over $184,500, probate is likely required. Additionally, if they died without a will, the estate must go through probate.

There are some exceptions to this. For instance, if the estate is worth less than $184,500, probate likely won’t be required. The beneficiaries named in the will can use a simplified procedure to get the money they’re entitled to according to the decedent’s wishes.

Similarly, if the property the decedent owned is held in joint tenancy with someone else – such as a spouse – it would pass to that person rather than going through probate. In fact, this is one way some people ensure their families can avoid probate in the future, as joint tenancy is one of many estate planning tools you can use to keep your assets out of probate. The following are the most common estate planning tactics to consider if you’re preparing an estate plan now to avoid probate:

Living trusts: When you set up a living trust and transfer your assets to it, those assets become exempt from probate because they belong to the trust at that point, not your estate. This allows them to pass to your beneficiaries as directed in the trust documents.
Joint tenancy: If your property is in your name only and not in a trust, it must be probated. But if you own it in joint tenancy with someone else, it can bypass probate and be transferred to them when you pass away.
Name beneficiaries on accounts: Certain types of accounts let you name one or more beneficiaries who will become entitled to the money in them when you pass away. Such accounts include retirement accounts, bank accounts, and life insurance policies. You can get the same result for stocks, bonds, vehicles, and other assets by adding a transfer-on-death or payable-on-death designation, allowing your named beneficiary to automatically take ownership without probate.

Personalized estate plans can include one or more of these estate planning tools, so talk to a San Jose attorney if you’re interested in allowing your estate to bypass probate. Getting legal counsel can also benefit you if you’re the executor of a loved one’s estate and wonder if you’ll need to go through probate. If it turns out you do, you’ll need probate administration assistance to properly navigate this process. Contact our San Jose law firm today for the legal services you need regarding probate and estate planning matters.

What Happens During the Probate Process in California?

If a close friend or family member recently passed away, and you know they named you the executor of their estate, it’s up to you to initiate the probate administration process if necessary. The most straightforward way to do this is to locate the estate planning documents, such as a will or trust documents with instructions on distributing the assets according to the decedent’s wishes.

In some cases, it may be clear that probate is unnecessary, such as if all their assets are in a trust or jointly owned with someone else. However, it’s not always obvious if probate is required, so it’s best to talk to a San Jose probate lawyer to find out if you’re expected to initiate the probate administration process. If so, they can guide you through the steps, which include the following:

File the petition for probate in California: You must file this paperwork with the court in the county where the decedent lived when they passed away. You should include a copy of the will and death certificate and pay a filing fee during this first step of the probate administration process. In most cases, this step must be done within 30 days of the death.
Notify all interested parties of the hearing: Once you find out when the probate hearing will be, you must publish a notice of it in a local newspaper serving the area where the decedent lived. You’ll also need to send the published notice of the hearing to the beneficiaries named in the will, any additional legal heirs, and possible creditors so they have a chance to come forward and request the money the estate owes them.
Prepare for the hearing: During the hearing, a judge will formally appoint an estate administrator based on the estate planning documents. They will also validate the will, ensuring it was properly signed and dated in front of witnesses. Only then can the decedent’s wishes be carried out based on the instructions in the will.
Take inventory of assets: A major part of estate administration is making a list of the assets in the estate, including real property, vehicles, personal property, bank accounts, and other assets. You’ll be expected to sort these into categories and include their value after an appraisal .
Pay debts: Creditors have limited time to come forward with claims against the estate. You’ll need to validate these debts to ensure they’re legitimate and then pay them from the estate’s bank account. You’ll also need to file and pay income and estate taxes.
Distribute assets to beneficiaries: The final step is to pay the beneficiaries according to the decedent’s wishes in the will. This might require you to sell any remaining assets in the estate before writing checks to the beneficiaries.
Attend the final hearing: Once all these steps are complete, you’ll have a final hearing with the judge. They will review your receipts and other paperwork to ensure you did your fiduciary duty and correctly completed the estate administration process. They’ll then allow you to close probate.

This process has several steps that may be difficult to complete on your own, especially if you’re unfamiliar with probate and estate administration. This is why you should hire a skilled San Jose probate lawyer for guidance throughout the entire process. Call our law firm in San Jose to learn more.

What Is Probate Litigation?

When someone passes away, their wishes regarding their estate aren’t always clear. While estate planning services can reduce any confusion by drafting wills and making trusts, family conflicts can still occur. The result is often probate litigation, in which a beneficiary, family member, or other interested party files a lawsuit to address legal issues during probate.

Will contests are among the most common reasons for legal challenges during probate in California. For example, an heir might attempt to prove that their deceased loved one’s estate plan was compromised because they were under duress or undue influence when they wrote or updated their will. Family members of the deceased can also claim the executor improperly administered the estate and should be removed or held liable for damages as a result.

Some estates don’t go through probate, such as when all the assets are in a trust. However, interested parties can still initiate lawsuits against the trustee and other responsible parties when they believe there’s a legal issue with the trust administration process. This is called trust litigation, a legal process that a skillful San Jose attorney can assist with.

For example, if an heir believes the trustee in charge of trust administration violated their fiduciary duty, causing delays or unfair distribution of the trust assets, this can lead to trust litigation. Heirs can also initiate trust contests if they have proof that the trust is not valid, similar to how families can contest wills during probate. If you’re unsatisfied with the trust administration process and are considering trust litigation, contact our San Jose law firm today for assistance with your case.

How Can San Jose Probate Attorneys Help?

At Trust Law Legacy Group, APC, we understand how complex the probate and estate administration processes are. That’s why we’re happy to fulfill the legal needs of a variety of clients, including executors dealing with probate and estate issues, individuals ready to create estate plans, and families thinking of contesting wills or trusts.

We’ve been practicing law in California for years and realize that nearly everyone will need to deal with estate planning or probate issues at some point, whether as a personal representative or someone in need of asset protection and other estate planning options. So, if you need help understanding the documents in an estate plan or have questions about business and real estate law in California, we urge you to seek legal counsel at our San Jose law offices.

Our San Jose probate attorneys have extensive experience offering clients a variety of legal services, from trust and estate administration to probate and trust litigation, so we’re confident we can provide assistance with your legal needs. If you’re ready to benefit from quality legal services, call our San Jose law firm at 669-201-4368 to schedule a consultation with a caring probate lawyer.