Do I need an attorney if I am named a personal representative?
Probate is the court process through which a deceased person’s assets are distributed to their heirs. While most of us are familiar with the term probate, few are aware of the intricacies of the probate process. If you are preparing your estate plan, have been named as a personal representative, or are the heir to an estate in probate, you likely have many question about the probate process in the state of California. Our San Mateo probate administration lawyers answer some of your frequently asked probate questions below.
Probate FAQ #1: When is probate required?
Not all estates will need to go through probate. Smaller estates valued at $150,000 or less may be able to pass without probate. Further, if the deceased person has placed his or her assets in a living trust or the assets are held in joint tenancy, these assets will not need to go through probate. For all other estates, whether the deceased individual had a will or not, probate will be necessary. During probate, the court will assist in the legal transfer of all of the deceased person’s assets to either named heirs or the next heirs in line, according to intestacy laws.
Probate FAQ #2: What are the responsibilities of the personal representative (executor)?
The executor will play a critical role in the probate process. If there is a will, the named personal representative will be tasked with executing the will. If there is no will or the person named as executor cannot fulfill the role, then the court will appoint an administrator. The executor has the duty of inventorying all assets of the estate and paying any ongoing bills, as well as outstanding creditors. To pay back creditors, the executor may need to sell some of the assets of the estate.
Towards the end of the probate process, the executor will need to prepare a final accounting. The court will approve the final distribution of the remaining assets. The entire probate process is lengthy and time consuming for the executor, often lasting from 12 to 18 months.
Probate FAQ #3: Does the executor need to hire an attorney?
Executors are not required to hire a probate lawyer, but should carefully consider the potential benefits of having an experienced probate attorney by their side. The probate process is complex and the executor will often need to deal with disputes and controversies. A probate attorney can prove essential in the smooth transfer of assets from the estate to the rightful beneficiaries.