Practice Areas

San Diego Probate Lawyers

The government needs a way to oversee the financial consequences of someone’s death, ensuring that debts get paid and collected, survivors have support, and that the deceased’s property be distributed as the deceased wanted. That legal process is called probate, and every state, including California, employs it to keep things flowing smoothly after a death. Contact a probate attorney in San Diego for a free legal consultation. Wills and trusts are the main vehicles for distribution of property in probate. If the deceased left no will, the state imposes a system of distribution according to the state’s intestacy laws. The court oversees the process, but it is largely carried on by a exam business person commonly called the deceased’s personal representative: either the executor appointed by the deceased in the will or the administrator appointed by the court to serve the same purpose.

The Probate Process in California

The probate court determines if the deceased’s will is valid, a process that is in most cases routine. When there are serious challenges to the validity, though, this determination can take a long time to make, and end up costing the estate considerable money. Once the probate proceeding commences, it generally consists of three stages:

  • The deceased’s property which will be distributed via probate has to be carefully identified, gathered, inventoried and valued; for property that is located in another jurisdiction, legal proceedings in that jurisdiction may be needed
  • The deceased’s creditors are notified (personally or via public notice) of the death, and of when and where they must present claims against the estate, and the claims are paid along with any taxes and the expenses of the estate
  • The remaining property is distributed to the heirs and beneficiaries

Payments by the estate generally follow a specific hierarchy of priority, which may change a bit from state to state. The fist payments are for support of the surviving family members (the family allowance) and the expenses of the estate including advertising to creditors, any attorney fees and the cost of gathering and valuing the estate property. The remaining payments are for: HP2-E59

  • Funeral expenses
  • Taxes and personal creditors
  • Any remaining claims
  • The shares payable to heirs and beneficiaries

Non-Probate Property

The probate court only has jurisdiction over property that is covered by the will. It does not have jurisdiction over property that, by its own terms, automatically passes ownership upon death. Examples of this kind of property include:

  • Accounts held jointly and payable on death (POD)
  • Insurance and pensions which specify the beneficiary upon the owner’s death
  • Property held as joint tenants with the right of survivorship
  • Property held in trusts

Claims and Debts

Not all claims presented to the administrator are automatically accepted as valid. The administrator makes an initial evaluation of the submitted evidence of the debt. If there are questions, a lawyer may be called in for an opinion (the lawyer’s fees are paid by the estate). If a claim is rejected, the claimant has the option to continue efforts to collect it under the procedures specified by law. In that case, the estate administrator employs legal counsel to defend against further collection efforts, or to negotiate a settlement of the claim for a smaller amount than submitted by the creditor. Most claim disputes are relatively minor, but there are exceptions. One relatively common claim that can complicate the probate process is a claim that the deceased caused personal injuries that have yet to be compensated. If the deceased’s liability is still open to question, the claim may remain open for a long time.

Legal Counsel for Probating a Southern California Estate

Probate can be extremely simple or incredibly complicated depending largely on how clear the deceased was as to the intended distribution, how many creditors there are and how clear their claims are, and how contentious the deceased’s heirs become. The aid of experienced legal counsel can be invaluable in dealing with those complications. If you need help in a probate proceeding, call the Boyd Law Firm in San Diego to arrange a free consultation. Our record speaks for itself; our clients speak highly of us and frequently refer their friends and associates to us for estate planning, probate, and probate litigation legal services.