Probate

The probate attorneys at the Watsonville law firm of Allen & Allen, LLP have a wealth of experience in probate administration and offer over 50 years of collective legal experience. 

What is Probate?

Probate refers to the process where a court oversees the administration of a deceased person's estate.  The purpose of probate administration is to ensure that any final bills and expenses of the decedent are paid, including any taxes owed, and any remaining assets are distributed to the beneficiaries named in the decedent's will.  If the decedent died without a will, or "intestate," the decedent's estate will be distributed to the decedent's heirs as defined under California's laws governing intestate succession.

The Probate Process

The Superior Court of the County of Santa Clara has a diagram on their website that outlines the steps required in the probate process.  To view the diagram, click here.  It should be noted that the timing of the steps shown on this diagram will vary depending on a number of factors, including the court's schedule, the nature and complexity of the estate, the amount of time required for the probate referee to complete the appraisal, the number of creditors filing claims against the estate, the sale of any real property, the requirement of any estate tax returns, and the existence of any dispute involving the estate.

Avoiding Probate

Probate has advantages and disadvantages.  The supervision of the probate court can ensure that the terms of your will are properly carried out and issues with creditors are resolved, but the disadvantages of probate are the following:

• Delay in Administration: Probate generally requires about one year to complete, but as noted above, many factors can extend the time required to probate an estate.
• Cost:  In addition to attorneys' fees and executor/administrator's fees which are determined on a sliding scale depending on the size of the estate, there are applicable court fees, probate referee fees and other costs.  Even a modest estate can result in significant probate fees and costs.
• Lack of privacy:  Probate proceedings are a matter of public record.  Your assets and beneficiaries are public record for viewing by any interested party.

Probate can be avoided by planning in advance.  Revocable living trusts have become a very popular mechanism for avoiding probate.  For further information about living trusts, see the estate planning page.

Heggstad Petitions

An often overlooked part of the estate planning process involves funding a living trust by changing title to assets to reflect ownership in the trust.  In some cases, when an asset is left out of a trust, a petition known as a Heggstad petition may be filed with the probate court, requesting a determination by the court that the asset belongs in the trust.  If the petition is granted, a court order is issued declaring the asset in question is actually trust property, and transferring the asset to the trustee.  A Heggstad petition allows the asset in question to be distributed in accordance with the provisions of the trust, without the necessity of a full probate administration.

Seek Experienced Legal Representation

Serving as the personal representative of a decedent's estate involves many fiduciary duties and responsibilities.  It is important to seek the guidance and representation of an experienced California probate attorney.  For a complimentary consultation with probate attorneys with over 50 years of collective legal experience, contact the law firm of Allen & Allen, LLP.