Probate Without a Lawyer
There's an old saying that a lawyer who represents himself or herself has a fool for a client, and that's especially true in criminal cases and civil cases where lots of assets are involved. Probate could be a different matter because it's possible to handle probate without an attorney in certain cases, but there are risks involved when you take this approach. Understanding what's involved is the first step before deciding what you want to do.
The Probate Process
Probate is the legal process of settling a person's estate after his or her death. During the probate process, the executor or administrator of the estate gathers information about assets and debts of the deceased, pays outstanding bills and gets estimates on the value of personal property, stocks, investments, business operations and real estate. The process can take a few months or up to a year or longer. There are many legal documents to complete and file with the court, but a general overview of the probate process includes these steps:
- Filing The Probate Petition
The will must be probated by the court in the jurisdiction where the deceased legally resides. Most wills name an executor, and if you're not the person named, the decision to probate the will is out of your hands. If the deceased failed to name an executor, you can petition the court to be name as executor. If the person died without a will, the law determines who will inherit. In this case, you might be named administrator of the estate and perform the same duties as an executor.
- Domicile Requirement
If you don't live in the same state as the deceased, you might be barred from acting as executor.
- Surety Bond
Depending on the state and the deceased's assets, you might be required to arrange for a surety bond to guarantee you’ll handle the assets responsibly.
- Listing Parties that Have an Interest
You'll need to list interested parties such as next of kin and their descendants. If a spouse or beneficiary is judged incompetent, a guardian ad litem must be appointed to act on that person's behalf.
- Providing Copies of the Petition for Probate
You must send copies of the petition to all interested parties, beneficiaries and people who receive gifts from the estate. You also need to publish a notice in the local newspaper and file a copy of the notice with the court.
- Validate the Will
If there are no objections to the will after the probate notice has been received, you must "prove" the will's authenticity. If everyone agrees, the court can accept the will. Other methods of proof include filing a notarized affidavit from one the will's witnesses. In some cases, the will might include a self-proving affidavit signed by witnesses.
Once the will is proved, you'll have to submit a financial report covering cash, estimated value of assets and remaining bills against the estate, which the court will have to accept before you can begin disbursing funds. Sure, you can handle probate yourself, but you'll have to go through all these steps even if everyone is in agreement, and that doesn't happen very often--especially when large estates are involved. At this point, you might begin to see the value of hiring a lawyer to handle probate. An Los Angeles County probate attorney at the Citadel Law Corporation can explain probate law and offer comprehensive probate services to determine the validity of the will.
Simplified, Accelerated Probate
The estates of people who die without many assets often qualify for a simplified probate process, and most states have this kind of arrangement. In California, for example, estates valued between $20,000 and $150,000 qualify for simple, expedited probate. People who live in a joint-tenant arrangement can pass their share of the property directly to the surviving tenant unless one of the parties leaves his or her share to someone else or a trust.
Taxes Generate Complications
You have to file a tax return for the deceased, and that can generate many complications for someone inexperienced in tax law, finding deductions and knowing how to treat complex income streams, capital gains and investments. There are also federal estate taxes to consider on cash, property, investments and other assets that are transferred from a deceased person's estate, but these generally apply only to estate bequests that exceed $5.43 million per person. If you're talking about that kind of money, trying to handle probate yourself would be extremely unwise.
Special Petitions to the Court
Filing petitions can free money from an estate to transfer to beneficiaries in several ways. For example, assets can be transferred to the spouses of deceased persons without going through probate court by filing a Spousal Petition. Some assets are excluded from probate, and these include:
- Trust assets
- Joint-tenancy assets
- Certain assets where beneficiaries are named such as life insurance and IRAs
- Assets held in trust for someone else
- Assets that were set up to transfer to another person after death
- Community property assets with rights of survivorship
Red Tape Commonly Frustrates Do-It-Yourself Executors
How's your knowledge of legal terms? You might need to brush up on complex probate-related terms like "joint-tenancy with rights of survivorship" and other complex terminology. If a relative challenges the will, you could be in for a long legal battle while the assets remain unavailable to every party who's named in the will.
Safeguard Your Rights Under the Law
Most people would never try to perform surgery on themselves or pull their own teeth because these jobs are best handled by professionals. The same is true of probate unless the estate is small and there are only one or two beneficiaries who are entitled to divide the estate equally. Any variations or unusual circumstances can lead to beneficiaries challenging the will and disputing the estate's value. Heirs often become highly emotional and volatile, and even close family members can challenge your decisions if they feel short-changed. There's also the red tape to handle, risks of doing things incorrectly and ignorance of laws that could save you thousands of dollars. That's why hiring a lawyer and doing things the right way is important. In the San Francisco area, Citadel Law Corporation specializes in estate planning, probate law and ways to transfer assets without probate. Contact the firm today for answers to your questions about probate and estate planning.