Probate Attorney San Diego
An unequivocal revocation of a will:
“[I]n 2001 decedent took his original copy of the 1997 will, urinated on it and then burned it. We hesitate to speculate how he accomplished the second act after the first. In any event, decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will.” – Estate of Stoker, 193 Cal. App. 4th 236 (Cal. 2011)
Wills & Trusts
In California, estates that are valued at more than $150,000 generally have to be probated. There are exceptions made if the decedent is survived by a spouse.
Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset if it is owned in joint tenancy or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated. If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.
The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent’s closest relatives have the highest priority to become administrator of the estate. Depending on the circumstances, this person may be called the executor, administrator, personal representative, or administrator with will annexed.
Probate begins with the filing of a petition for probate at the Superior Court in the county where the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.
The decision as to whether or not a probate petition is granted is made by the judge who hears the case, but the preliminary work is done in most counties by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes sure that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to give the petitioner a chance to present his or her case.
If the probate has no unusual problems, it can be concluded in eight to twelve months. That includes a four-month creditor’s claims period, and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held several weeks after the petition is filed. There may be other problems with creditors, taxes, or will contests that will delay the probate for longer periods.
In most counties, if the case has been approved by the probate examiner’s office, and no one has indicated that they intend to contest that decision, the hearing is minimal: The judge calls the names of the cases on the “approved list.” If no one stands up to object when the case is called, the order will be signed without having to hear testimony. If you want to raise an objection to any petition, be sure to call the probate examiner’s office, or the attorney for the opposing side, to make your objection known before the hearing.
Many people are surprised that trusts can end up in Probate Court, but it is surprisingly common. Probate Code Section 850 Petitions and Heggstad petitions seek to transfer assets into or out of a trust or estate. Heggstad Petitions are usually filed when a trustor failed to transfer an asset into the trust prior to their death. 850 Petitions are a common vehicle used to take back assets that the trustee believes should belong to the trust. In trusts and their administration, there are often a disputes between heirs, beneficiaries, and trustees as to how trust or estate property should be handled or disbursed or as to whom should handle or disburse it. These issues are all adjudicated in Probate Court.
A conservatorship is a court case where a probate judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.
Guardianships are adjudicated by the probate court as well. Guardianships arise when someone other than the parent is seeking to have custody over a minor child and/or to manage the child’s property. Guardianships usually occur when a child is living with an adult who is not the child’s parent, and the adult needs a court order to make decisions on behalf of the child or when a child has inherited money or property and needs an adult to manage it for them.
Probate law is extremely complex and typically requires hiring an experienced probate attorney so your matter is handled properly.
Contact us for more information on how the Heieck Law Center can help your probate-related legal issue.