Dealing with the passing of a family member or close friend is a difficult and disorienting experience. It’s an emotional time filled with questions about what to do next, and who to ask for help. Fortunately, the law firm of Gomez & Simone is here to help, with caring attorneys and compassionate staff who will shepherd you through this challenging time to reach the best possible results. If your loved one just passed away and you have no idea what to do, just call Gomez & Simone at 855-219-3333 and we will be there for you in this time of need. If your loved one had living trust or other legal devices, you may not need probate at all, or perhaps a simplified probate. If you are named as the executor of the will, then you should definitely call us. Or if you have already been named probate administrator, it is definitely not to late to call us. We think you’ll be very glad you did.
Do You Need A Probate Attorney?
If your dear friend or family member passed away owning real property(s) in California in a form of title other than joint tenancy or transfer on death, and did not have a trust drawn up, it is almost certain that a probate case will need to be opened. (There is a “short” procedure where the real estate is worth less than $150,000, but this not likely going to be the case in Southern California.) At this turbulent and disorienting time you undoubtedly have many questions, but three things are clear in these situations: a probate should be opened, it should be opened as soon as possible, and it is best handled by an experienced attorney. We have had too many real estate litigation, family law and foreclosure defense clients come to our office whose lives are a sheer disaster because they procrastinated and never opened a probate… and now it’s too late. Don’t be one of those people, call Gomez & Simone now at 855-219-3333 for a Free Consultation * that will set your mind at ease.There are cases where individuals may have an interest in, or seek to make claims against, an estate. In these situations, probate and estate administration matters come into play, and these are difficult and complex issues. Coping with the loss of a loved one is difficult enough, but the legal hurdles surrounding their estate can further contribute to your stress and anxiety, so leave it to your trusted attorneys at Gomez & Simone to handle everything.
What IS Probate?
Probate means that there is a court case that deals with:
• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a will is valid; and
• Taking care of the financial responsibilities of the person who died.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
How does a Probate case work?
(1) Determine the Executor/Administrator
If there is a Will, then the custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:
- Take the original will to the probate court clerk’s office within 30 days.
- Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
If there is no will and a court case is needed, the person who wants to be the administrator must file a Petition for Letters of Administration. The administrator usually is the spouse, domestic partner, or close relative of the dead person. The probate court will appoint an administrator to manage the estate during the probate process.
(2) File the Petition for Probate.
Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (Form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
- Petition for Probate of Will and for Letters Testamentary
- Petition for Probate of Will and for Letters of Administration with Will Annexed
- Petition for Letters of Administration
In addition, a probate case requires more forms than just the Petition for Probate form.
(3) Administer the Probate Court Case
- The probate clerk sets a hearing date.
- The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (Form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
- The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
- The petitioner must arrange for notice to be published in a newspaper of general circulation.
- A court probate examiner reviews the case before the hearing to see if it was done correctly.
- Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
- The personal representative gathers up the assets and prepares an Inventory and Appraisal to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county. (Get more information on probate referees.)
- The personal representative provides formal notice to creditors with the Notice of Administration to Creditors and pays the debts.
- A final personal income tax return is prepared for the person who died.
- The probate court figures out who gets what property.
- A Report of Sale and Petition for Order Confirming Sale of Real Property is filed with the court so that sales of real property are confirmed by the court.
- If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
- The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
- After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
As you can see, this is the kind of process best handled by an experienced attorney. Gomez & Simone is here to take this burden off of you, so please don’t delay in calling us at (855) 219-3333or just fill out the form on the right. You’ll be glad you did.