Probate

Probate, the court-supervised legal proceeding for carrying out the instructions of a will, can be complicated for many people. Those who have been named as personal representatives, for example, are responsible for managing and distributing the assets of the decedent. They also have a fiduciary duty to properly handle the estate assets and to act in the best interests of the beneficiaries. When a person dies without a valid will in place, or disputes arise among the beneficiaries, the process can become even more complex.

At GM Law, we routinely provide probate and estate administration services to clients in and around Santa Barbara County and throughout the state of California. We work closely with personal representatives and estate administrators by helping them navigate the rules and customs of the local probate courts.

What is a personal representative?

A personal representative is someone who is designated in a will to manage and distribute assets to beneficiaries upon the testator’s (the person making the will) death. Generally, personal representatives are responsible for carrying out a number of duties, including:

  • Petitioning the probate court to validate the will
  • Notifying the rightful beneficiaries and heirs
  • Inventorying and appraising the estate assets
  • Paying the decedent’s debts to creditors
  • Filing the decedent’s final income taxes
  • Paying federal estate taxes, if applicable
  • Distributing the remaining assets to the beneficiaries

Because a personal representative is considered to be a fiduciary, he or she is in a position of trust with the beneficiaries. In short, this individual must carry out his or her duties ethically and can be held liable for any mistakes or misdeeds.

What are Letters Testamentary?

In order to initiate a probate proceeding, the personal representative must ask the probate court in the county in which the decedent lived to be appointed. After holding a hearing to verify that the designated individual is capable of acting as the personal representative, the court will issue what are known as Letters Testamentary and officially open probate. In short, this document gives the personal representative the authority to undertake his or her duties.

What is an Estate Administrator?

When a person dies without a valid will in place or “intestate,”, one of the heirs, a legal relative or close friend of the decedent, must ask the probate court to be named the estate administrator. In this situation, the court will issue Letters of Administration and open probate. The estate administrator must manage and distribute the assets according to California’s intestacy laws.

At GM Law, we routinely work with executors and administrators to ensure that they fulfill their fiduciary duties and that the interests of beneficiaries are protected.

Do all of the assets need to be probated?

In California, certain assets are considered non-probate assets, including:

  • Real property in which title is held jointly, with right of survivorship
  • Real estate subject to a transfer-on-death deed
  • Property held by a properly designed and funded living trust
  • Life insurance policies and retirement accounts with designated beneficiaries
  • Bank and investment accounts with pay-on-death (POD) designations

What happens if someone objects to the will?

At times, someone with legal standing may contest the will during the probate proceeding in what is known as a will contest. These challenges can arise under a number of conditions, including:

  • Claims that the testator did not have capacity
  • Undue influence or fraud
  • The competency of the personal representative is challenged
  • The distribution plan of a prior will is subsequently changed by a new will
  • Children and other heirs receive unequal shares

Because these disputes can become emotionally charged, as well as a legal and financial burden for family members, we often encourage all parties to reach a negotiated settlement through a process known as mediation. Our objective is to ensure that everyone is treated fairly and to help families restore harmony. If the dispute cannot be resolved amicably, however, we are fully prepared to litigate the matter in the probate court.

Is a personal representative entitled to compensation?

A personal representative may be reimbursed for expenditures and can also be awarded statutory fees by the probate court. The amount of these fees typically depends on the size and complexity of the estate, however, a set fee may also be specified in the will.

How much does probate cost? How long does it take?

Generally, the cost and duration of probate depend on the size of the estate. If there is no litigation involved, the process can take between 9 and eighteen months. As for the cost, there are a number of probate fees to consider such as personal representative’s fees, attorney’s fees, court filing fees and other costs, which can range from 2 to 7 percent of the total estate value.

Santa Barbara Probate and Estate Administration Attorney

Although small estates can be probated more expediently, larger estates often present complex legal and financial issues. In any event, a capable probate and estate administration attorney can help you navigate the process and avoid costly mistakes.

At GM Law, we provide clients with legal knowledge and skill and guide them through each step of the probate process. We are comfortable in the probate courts and have a proven track record of protecting the interests of personal representatives, estate administrators and beneficiaries.

Knowing that coping with the loss of a loved one is difficult, we provide our clients with compassion and reliable advice. If you have been designated the personal representative of a loved one’s estate, are a named beneficiary in a will, or have questions about the probate process, call our office today to set up a consultation or complete the contact form on our website.