Probate litigation involves disputes regarding wills. The purpose of probate litigation is to correct a wrongfully distributed or mishandled estate or misapplication of a will. The administrator or executor has the legal right to act on behalf of the probate estate, which is all the assets and property owned by the person who died, also called the decedent. The main steps in probate include the following:
- Correctly filling out and submitting forms to the court as well as the will if one exists
- Identify property as well as debts and creditors of the estate
- Pay off the decedent’s debts and taxes
- Distribute what’s left of the property and assets within the estate to heirs or beneficiaries
The Probate Process
When someone passes away and has a written will, the person whom they named in the will as the executor of their estate, also called the administrator or personal representative, submits a petition to perpetuate a will and solemn form to California probate court. The petition requests that the court review the will to determine if it’s legitimate and notify the associated parties. The petitioner must provide their name and address on the petition. Next, the petitioner must sign in front of the notary of the court an acknowledgment that they have no objection to the will being submitted as that of the deceased.
When someone passes away without a will, if their estate includes more than $150,000 or real property worth at least $50,000, it will need to go through probate. If someone dies and has no property to transfer, they typically won’t need to go through probate unless the estate owes a lot of debt. If so, there is a deadline for creditors to submit their claims. The heirs must sign an acknowledgment of the petition, and it must be submitted in the county where the deceased resided at the time they passed away.
This is a generalized summary of the first step in the probate process. There are other steps that must be taken, and, in most cases, a probate lawyer is needed to handle the details, including the following
- Determining heirs
- Determining who to notify and how to notify them
- What to do if somebody refuses to sign the acknowledgment
- If the executor named in the will is not the person submitting the petition
- Any other issues that can come up in the probate process
Taxes Associated With Probate
While California doesn’t have estate faxes, there are still a number of tax obligations that must be met before an estate can be distributed. The majority of those are listed below:
- Personal federal income tax
- State returns for Federal Fiduciary Income Tax
- Federal Gift Tax Returns
- Federal estate taxes
- State taxes
- Local real estate and personal property tax
- Business taxes
- Back taxes owed from years prior to the deceased’s passing
Reasons for Probate Litigation
As an heir or beneficiary, you may need to initiate probate litigation. The underlying reason to engage in probate litigation is that you have reason to mistrust the administrator or executor of an estate. Whether because of the executor’s misconduct, mishandling of estate affairs, failure to act or communicate, or refusal to provide a copy of the will, probate litigation is usually enhanced when a legal professional represents you. Some reasons you may need to hire a probate attorney to assist you in litigation include:
- There is no response from the executor.
- The executor or administrator fails to supply an account of the estate.
- An heir or beneficiary has reason to believe or becomes aware of evidence that the executor or administrator is taking assets that don’t belong to them to benefit themselves.
If you’re not sure whether you should enter into probate litigation, you should seek the legal counsel of an experienced probate litigation attorney who can advise you on your options.
FAQs
Q: How Long Does a Probate Case Take in California?
A: State law requires a personal representative to complete the probate process within one year after being named the personal representative, executor, or administrator of an estate. If the administrator is timely in their actions with probate, the process should be complete between nine and 18 months. Once the process is complete, the assets can be distributed.
Q: Do I Need a Lawyer for Probate in California?
A: It is recommended that anyone who is involved in probate, whether in litigation or initial will processing, hire a professional attorney to represent them or guide them through the probate process. An attorney can also help their client adhere to deadlines and answer any requests from the court appropriately and quickly to avoid delays.
Q: What Is the Difference Between a Beneficiary and an Heir?
A: A beneficiary is someone who receives property by entitlement according to a will that has been submitted into probate. An heir is someone who is expected to inherit an estate when there isn’t a will. A seasoned probate attorney can help you determine your relation and status concerning a decedent’s estate.
Q: How Much Does Probate Cost in California?
A: Compensation for an executor and an attorney for probate in California is cumulative. An estate worth $1.2 million will warrant fees of 4% to the executor and attorney for the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and 1% of the next $9 million.
Getting Help From a Qualified Probate Attorney
If you have questions about probate law, the most knowledgeable source is an experienced probate attorney who is well-versed in California probate law. Quinn & Dworakowski, LLP has successfully represented countless probate law cases and assisted many clients in meeting their goals in estate planning. If you’re in need of estate planning advice, whether in the form of legal counsel or probate litigation, our legal team is equipped to assist you with your needs.
Contact Quinn & Dworakowski, LLP and speak with our well-versed and established California probate attorney. We can answer your questions and help you navigate your probate situation.
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