At Hackard Law, we handle a variety of matters related to estate litigation, including will contests, will and trust construction actions, guardianship disputes, trust termination lawsuits, trust modification actions, and breach of fiduciary duty suits against executors, trustees, and administrators. We offer free consultations and will advise you as to your legal options at no cost to you. To schedule an appointment with one of the California probate litigation lawyers at Hackard Law, call us today or send us an email through our online contact form.
What Is Probate Court?
Probate court is a specialized court that deals with issues related to the administration and disposition of a decedent’s estate. In addition, in certain situations, a probate court can adjudicate matters related to guardianships. Even if you write out a formal legal document detailing who you want to inherit your property and in what proportion, the probate court must review your will before anybody can inherit any assets. In addition, even if you use a trust to pass your assets to others, challengers can raise objections to the trust in probate court.
If your case goes to probate, via a will or trust, the probate judge will determine if the executor (a person named in a will) or trustee (a person named in a trust) can legally begin the process of following the instructions of the will or trust. If the court gives the go-ahead, then the executor or trustee will begin collecting the decedent’s assets, paying any remaining debts and other obligations, then distributing what remains to those named in the will or trust. If someone dies without a will, or the probate court partly or completely invalidates the will, the court will appoint an administrator. Either way, the probate court will exercise jurisdiction over the entire process.
Factors that determine whether your estate goes through probate include:
- Whether you passed away with a will, without a will, or your assets were structured to pass without probate
- If you entered into a voluntary contractual obligation for how to distribute your property after your passing.
- If somebody challenges the capacity of the person who created a trust. A challenger can say the grantor was (1) Younger than 18 at the time the will was made; (2) Was of unsound mind; or (3) The testator was a victim of fraud or undue influence.
- If the probate court deems the will invalid in whole or in part
- The person or persons named in the will to distribute the decedent’s property (the executor or executors) are alive, of sound mind, and willing to carry out their duties.
If the probate court gets involved in the process, it will generally takes no less than nine months to resolve, though obviously it could take more.
Can I Avoid Probate?
In general, structure your estate to avoid probate whenever possible, as it can cost money, last for months or even years, and increase the likelihood of a dispute regarding the disposition of your assets. Common ways that you can pass property and bypass the probate process include:
- Joint tenancy ownership with the right of survivorship: Sometimes the decedent’s property will pass in whole or in part directly to the person or persons named in the will due to the ownership of the property in question. The named person or persons need to show proof of ownership. If two or more people own the property in joint tenancy—that is to say, two or more people own the property in question jointly—when one person dies, the remaining property owner(s) take the deceased person’s share.
- Community property: When a spouse dies, the other spouse gets all property that the spouses acquired while married as well as a percentage of the spouse’s separate property. Separate property is what the deceased spouse owned before marriage or acquired through inheritance while married to the surviving spouse.
- Joint bank accounts: If a bank account has more than one person named on it, the survivors named on it get the money in the account. If the bank account holder leaves instructions to transfer the account to a named person, that person gets what is in the account as well.
- By contract: Sometimes a portion or all of one’s property are given to someone who contracted with the now-deceased person. Examples include: life insurance that pays benefits to anyone other than the decedent’s estate, retirement or death benefits, and prenuptial agreements.
- Value: If the total value of an estate is less than $150,000, assets can pass without the intervention of a court. To determine the value of an estate, you must include all real and personal property as well as all life insurance and retirement benefits that the estate will receive. Assets not included in the calculation include cars, boats, mobile homes, real property outside of California, real property held in trust, real property owned by joint tenancy, property that passed directly to a surviving spouse or domestic partner, assets not subject to probate that pass directly to beneficiaries, unpaid salary or commissions of as much as $5,000, debts or mortgages, and bank accounts owned by the decedent with other people.
Call Us Today to Speak With a California Probate Litigation Attorney
Probate litigation can prove extremely complicated and adversarial. Its outcome can leave a significant impact on the distribution of an estate’s assets.
Anyone involved in a dispute before the probate court must retain qualified legal counsel as soon as possible. To schedule a free case evaluation with one of our lawyers, call Hackard Law today at (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles, or contact us online to schedule an initial consultation. Our lawyers serve clients throughout the Los Angeles and San Francisco Bay areas, as well as the rest of California.