A Probate Guide By Lisa MacCarley

These are the thoughts of Lisa MacCarley, Attorney at Law. They are meant to be helpful guides and do not represent or act as legal advice. You should consult a legal professional before taking any actions based on these answers.

FAQ:

What is Probate?

In California, “probate” refers to the legal process that is often necessary when someone passes away, “a Decedent,”  and they have property in their name  - for example a house or large bank accounts - that is not in a trust, and doesn’t have a designated beneficiary, and is not co-owned with “a joint tenant,” so a court-supervised process occurs to settle the Decedent’s debts and transfer what is left to his or her heirs or beneficiaries named in a “Will,”   

The court supervises the transfer of assets, usually real estate, investments, and things that have a title - think of a pink slip - or deed - or account statement -  as opposed to, let’s say, a piece of art or something that could be simply handed to someone. Items referred to as tangible personal property - jewelry, collections, family momentos, typically do not need to be “probated.” 

So the court supervises a process of gathering assets that are in the name of the Decedent, reviewing their debts - referred to as “creditor’s claims,” and facilitates the transfer of what is left over after claims are resolved, to two types of people: heirs at law and beneficiaries. 

Heirs at Law vs. Beneficiaries

If there is no will, an heir at law is the term I use to describe a person who inherits in the absence of a will or trust.

Beneficiaries are the people who are specifically designated to inherit as a result of a will or trust that has been properly signed by the deceased person. 

These can be the same people. Many people simply leave wills saying, “I leave everything to my children.” In that case, the children would be both the heirs at law and the beneficiaries, but it doesn’t have to be the same group of people.

Does Every Estate Need to Go Through Probate? 

Not every estate needs to go through probate. There are exceptions to the rule. One big exception is when a married person dies and all of their property was accumulated as community property (meaning it came from the earnings of the spouses during marriage). That property can be passed from one spouse to the other via a short-cut process called a spousal property petition. 

Other smaller estates can also be settled outside of probate. For instance, if you have $100,000 in a bank account in your name alone, your heirs or beneficiaries can often claim that amount outside of probate. 

And now, in California, there is a process effective as of April 1, 2015: people who are living in a house or inheriting a family residence valued at $750,000 or less (which is still significant for many counties outside of Los Angeles) do not need to go through probate for that residence.

So there are exceptions, and it’s important to find an attorney who knows these exceptions, because using one of the shortcuts will save a great deal of time and money.

How Do I Know If I Need a Probate Attorney? 

Generally, there are a couple of ways you’ll find out. For one thing, you’ll receive documents, and when you try to handle things yourself, you’ll quickly hit roadblocks. 

For example, when you review the title to a house, you may see through tax bills or other notices that the title is strictly in the name of the deceased person. Almost always (again, with the exception of a California residence valued at $750,000 or under), investment property, commercial buildings, office buildings, or any real estate where the deceased person is named as the owner will need to go through probate. 

The other common situation is that you’ll find a bank statement in the decedent’s house and take it to the bank. The bank will tell you, “We’re not allowed to talk to you because of privacy rules.” In other words, they’re not allowed to speak with you unless you have official court paperwork.

I had a case recently where a woman’s husband, who had been the executor of his father’s estate, passed away. She went to the bank with an account slip, and they informed her that they could not do anything until she obtained a court order. So I went to court and spent about $5,000 to have her named as the personal representative of her father-in-law’s estate.  You’ll find out fairly quickly whether you need a probate attorney, because the institutions involved simply will not speak with you until everything is properly in line.

What Are Some Common Mistakes People Make When Trying to Handle Probate Themselves?

Even though the process is supposed to be straightforward, because of technology changes, the increase in fraud, and identity theft, there are now many local county rules and forms. California has 58 counties. What most people don’t realize is that each county has its own local rules and forms. I’ve been doing this for 30 years, so I’m well-versed in the counties where I typically work, but even I can get tripped up in counties where I haven’t practiced before, especially since many do not publish this information on their websites. 

For example, the court will tell you to “file a petition for probate,” but it won’t tell you exactly what that step requires or which additional forms must be filed before your hearing. Some counties require the Duties and Liabilities of a Personal Representative form in advance; others do not.

The other major mistake people make is not knowing who must receive notice. You may think, “There’s a will, and I’m the beneficiary,” but the court will say, “Yes, but your dad has six other children; they all have to receive notice too.” There are strict rules about who gets notice, and properly notifying everyone is often one of the hardest parts of getting a case approved.

Which Specific Things Should I Look For in a Probate Attorney?  

The most important thing when choosing a probate attorney is finding one with experience in the actual courthouse in the county where the decedent passed away or owned property. Experience counts for a lot. As I’ve mentioned several times, there are local rules, nuances, and documents that must be filed on time.

I also recommend finding someone who is highly organized and can move matters forward quickly, someone who knows every step of the process and calendars everything that needs to be done. I personally always calendar 120 days after the court issues letters. Within those 120 days certain things must be completed: we must file an inventory, give notice to creditors, and notify the Franchise Tax Board in California, for example.

Finally, choose someone who is accessible and has a strong team behind them. After 30 years as a probate attorney, I want you to choose an experienced, organized, local probate attorney, not someone who says, “I’m a personal-injury lawyer, but I’d like to make some money doing your probate.” That happens more often than you think, so please don’t make that mistake.

Red Flags When Looking for a Probate Attorney 

Obvious red flags include anyone who hasn’t been practicing for many years or who admits, “I’ve never done this before.” You should interview several attorneys to find the right fit, and any good attorney will understand that and won’t pressure you with a hard sell. I want you to make the best informed decision. Please interview others.

Watch out for anyone who says, “It’s my way or the highway.” In difficult cases I’ve had to collaborate with other professionals, and solid attorneys are always willing to work with others to solve problems. I have even referred clients to other attorneys so they can get a fresh prospective on a case. My attitude is that if there is a better way to do something, you owe it to yourself to find that way. 

Also avoid firms that involve a lot of different people on your case. You should really work with just one or two consistent contacts, because it’s very hard to transfer all the information and nuanced information from person to person, even with excellent notes. 

Why Should Clients Choose Lisa MacCarley?

For one thing, I’m accessible and very involved in every case. I prepare many of the documents myself, so you won’t be handed off to a paralegal or associate who doesn’t know the specifics of your case. I make appearances in the local courts on a regular and frequent basis and know all the judges, too. In California, probate fees are generally set by statute based on the size of the estate, and I don’t have pressure to generate a certain amount of monthly billings. Unlike some larger firms, I don’t have to files to hit numbers, and I think that’s a real advantage for clients.

My team and I understand how painful this process often is. Nobody wants to be in probate court (nobody). This isn’t something you choose, the way you might choose to file a civil lawsuit. It’s almost always something people want to avoid. We get that. We work with clients on their own terms and do everything we can to make a difficult situation easier.

Some people are very sophisticated and want to run their own show, and we are happy to let them do that. Other people need more guidance and hand-holding. I believe we’re equally good at both.