Here is When You Need a Probate Attorney
A San Diego probate lawyer becomes a valuable guide to surviving family members and beneficiaries after losing a loved one. Add the legal and financial pressures to the situation and anxiety levels immediately start to climb.
Probate lawyers offer experience in San Diego’s court systems and knowledge of California’s probate rules to get you through the entire probate process. If you have been named in a will or have a beneficiary claim, you need to talk to a probate lawyer.
State of California
San Diego, California is known throughout the world for its retirement communities. Although California does recognize an out-of-state will, it must meet California Probate Code § 6113 to be validated. A San Diego probate lawyer can help by reviewing the will drafted in other countries or states. Reasons for meeting with a California probate lawyer include:
- Deceased lived outside of California at the time of death and owned California property.
- Executor or personal representative currently live in another state.
- Deceased drafted the will in another state or foreign country.
Choosing not to have a California probate lawyer review the out-of-state will could initiate an ancillary probate proceeding in addition to the primary probate process. Primary probate validation will take place in the originating state and potentially allow the state of California to accept the court’s outcome. Dual probate proceedings not only extend the probate process, but it could also increase the cost to administer multiple estate probates along with add-on court and legal fees.
The whole point of drafting a will is to make sure family members are emotionally and financially set to move forward. From time to time, not all descendant information is openly shared between family members or business partners. A San Diego probate lawyer provides full disclosure of the estate’s circumstances to protect the assets against contestation or lawsuit.
- Legal guidance can prevent overpaying debts as part of the probate settlements.
- Full disclosure among family members could prevent expensive and time-consuming lawsuits.
- Unknown debts related to taxes, personal loans or business agreements could carry extreme penalties.
Creditors are generally prepared to fight for settlement of debts causing the delay of property transfers to the rightful heirs or beneficiaries. A lawyer is going to make sure that the probate procedures are legally in place to avoid unnecessary distress to the estate.
Real Property Probate
The majority of a person’s property must go through probate when death occurs. A probate lawyer can help determine whether the estate property can by-pass probate. Certain financial or real estate asset categories can avoid probate:
- Joint tenancy
- Community property
- Held in a trust
Sometimes the heir or beneficiary has an interest in a closely held business, family business or sole proprietorship and is interested in selling. Talk to a probate lawyer about the rules on the sale of real property during the probate process. In California, the court must approve the process of sale governed by the Probate Code. A letter of testamentary with full or limited authority (court monitored) is issued, if the court approves the sale process.
- Notice of sale must be given to beneficiaries.
- Property is appraised before listing it for sale.
- Beneficiaries must be notified of an accepted offer and terms.
- Sale will close only if there are no objections from all beneficiaries.
Legal Questions and Decisions
If the probate process isn’t handled correctly and ethically, the estate could be held liable for the mistakes. Even though California does not have a statute of limitations for filing probate, the Probate Code strongly recommends filing within 30 days after death.
- Creditors are prohibited from filing claims after one year from the date of death.
- Tax liabilities exist on estate earned income after death.
- California law allows interested persons to contest the will within 120 days after the will is admitted to probate.
Probate lawyers can help ease the tension and stress by explaining how California Probate Code works best for the estate. More important, a probate lawyer assures the deceased final wishes are carried out.