Los Angeles, California Probate Attorney
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 Law, APC, 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, call Gomez Law, APC at 855-219-3333, and we will be there for you in this time of need. If your loved one had a living trust or other legal devices, you might not need probate at all or perhaps simplified probate. If you are named as the executor of the will, then you should call us. Or if you have already been named probate administrator, it is not too late to call us. We think you'll be very glad you did.
Probate when your loved one died and left a will
A last will and testament can specify the decedent's wishes regarding the contents of their estate, the beneficiaries, and administration wishes. Wills can even include other wishes such as who should care for any pets and details on funeral arrangements. These are more informal.
When a loved one dies, survivors must make arrangements for a funeral or obtain a death certificate, as well as decide what to do with all of the loved one's belongings. Even if a loved one left a will stating who's entitled to certain assets, family members cannot simply show up at the estate and start taking from it.
This is when probate comes into play. The probate process is designed to settle the estate and the distribution of assets in an organized fashion. The probate court will validate the decedent's last will and testament, distribute assets to heirs, and settle all outstanding debt as part of this legal process.
Wills can be overridden through other legal devices. Beneficiary designations, for example, can direct that certain property and assets pass to a beneficiary upon the death of a person. These assets are not transferable through a will.
Probate when your loved one passes without a will
Without a will, an estate is dispersed according to the statutes of intestate succession in California. These decide the succession in which a family inherits the property and assets of a loved one. Being without (in-) testament is referred to as intestacy.
Because California is a community property state, nearly all property acquired during a marriage is co-owned by the spouses. When a spouse dies, the surviving spouse becomes the sole owner of all communal property and frequently inherits up to half of all remaining property, or a third, depending on the number of children left behind.
After the immediate next of kin are excluded, the inheritance is distributed equally among parents, siblings, or nieces and nephews. If you have a spouse but no children, your separate property is distributed between your spouse and your parents, siblings, or nieces/nephews.
The specifics will be determined on an individual basis. In most cases, intestate succession can readily identify the legitimate heirs. However, in the rare instance where a deceased has no relatives, the state may place aside their estate until an heir is discovered.
Do You Need a Probate Attorney?
At this turbulent and disorienting time, you undoubtedly have many questions, but three things are clear in these situations: 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 and foreclosure defense clients come to our office whose lives have been upended because they procrastinated and never opened probate. Don't let this be you.
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 will not likely be the case in Southern California.)
In some cases, 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 Law, APC, to handle everything.
A Walk Through of The Probate Process
Now that you’ve read about the basics of probate, you may be wondering what the process looks like. Below you’ll find a big picture overview of the probate process and steps necessary to successfully conclude it.
Step 1: The Executor or Administrator Determination
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.
Step 2: The Probate Petition is Filed
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.
Step 3: Administration of 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.
Consult with an Experienced Los Angeles Probate Attorney
The probate process is complex and hard to manage, especially following the death of a loved one. Unfortunately, errors during probate can be extremely costly. Therefore, when contemplating what to do, it is imperative that you consult with an experienced probate attorney to ensure that no irreversible mistakes are made. Gomez Law, APC, is here to take this burden off of you, so please don't delay contacting us. You’ll be glad you did.