Experienced Sacramento Probate Attorneys
If you have recently had a loved one pass away, we understand it can be a difficult time. However, addressing legal matters during a period of grief is unfortunately sometimes a necessity; Litchney Law Firms experienced Sacramento probate attorneys are available to help you through the challenges of probate.
If you or a loved one die without a living trust or will, you are said to have died intestate. Today, all fifty states have laws that spell out how property is to be distributed when a person dies intestate; i.e., without a valid will. These laws are generally referred to as the “laws of intestate succession.” In some cases, however, they are referred to as the “laws of descent and distribution,” or simply as “intestacy laws.”
What is Intestate?
In modern usage, the word “intestate” or “intestacy” applies to any portion of your probate property that is not effectively disposed of by a valid will. Keep in mind that your probate estate will only consist of property that is solely-owned by you at the time of your death. It does not include property that you and someone else own jointly with rights of survivor-ship, nor does it include any life insurance, annuities, or retirement plans in which you have designated a beneficiary, or any property that you own in a living trust.
If you die without a valid will while residing in the State of California, you are said to have died “intestate.” In order to determine who will receive your property if you die intestate, the State of California has established a number of laws (known as “intestacy laws” or “laws of intestate succession.“).
Even if you have a will, it is possible that some or all of your probate estate may be treated as intestate property. If, for example, your will is not admitted to probate because you didn’t sign it, or because it wasn’t properly witnessed, or because it was made while you were under the undue influence of some other person, or because you were not legally competent to make a will, then your will may be declared invalid. In that case, you may be deemed to have died intestate and all of your probate property would be treated as intestate property.
In certain cases, too, it’s possible that your will may be admitted to probate but one or more provisions may be deemed invalid, either because those provisions were found to be the product of undue influence or because the beneficiaries named therein contested your will or were witnesses to the signing of your will. In any of those cases, you may be deemed to have died intestate with respect to the property disposed of by the invalid provisions of your will, and that property would be treated as intestate property.
Intestate property, by definition, does not have a designated beneficiary, which makes it very difficult for anyone to determine who the rightful beneficiaries should be. Contrary to popular belief, however, no state wants to keep your property if you die intestate. In fact, each state has developed a set of laws that give your intestate property to those individuals who are most likely to be the “objects of your bounty.” Of course, these laws are designed to accommodate the interests of all people residing within a state and, for that reason, may not be exactly what any one individual may want. These laws are known as “intestacy laws.” In some cases, these intestacy laws may be called the “laws of descent and distribution” or the “laws of intestate succession.”
What is Probate?
Probate is the process where the court supervises an orderly transfer of a deceased person’s assets to the beneficiaries listed in his or her will, if a will was prepared. Before property can be distributed to the heirs of the deceased it must often pass through the Probate Court to make the transfer of these assets legal. You will want to use a Sacramento Probate Attorney to assist you with this process.
At death, your will goes through probate. Probate simply means the process by which your last will is determined to be your final statement and which confirms the appointment of the person or institution you have named to administer your estate. The term probate is also used in the larger sense of probating your estate. In this sense, probate means the process by which assets are gathered, applied to pay debts, taxes and expenses of administration, and distributed to those designated as beneficiaries in the will.
The executor or personal representative named in the will is in charge of this process, and probate provides an orderly method for administration of the estate. The executor is held accountable by the beneficiaries (and sometimes is supervised formally by a probate court). The executor is entitled to a reasonable fee or commission. Probate law generally encourages or provides for partial distribution during the period of administration; assets may generally be distributed in kind rather than sold during this time. The tax laws generally focus the responsibility for death tax filings and payments on the executor under a will. Thus, the choice of an executor is an important one.
Should You Avoid Probate?
The living trust is often marketed as a vehicle that allows you to avoid probate upon your death. Probate is the court-supervised process of transferring property at death pursuant to the terms of a will. Many types of property routinely pass outside of the probate process. These include:
- life insurance or retirement plan proceeds which pass to a named beneficiary rather than your estate
- real estate or bank or brokerage accounts held in joint names with right of survivor-ship
It is true that the property passing under the terms of a living trust upon the death of the maker of the trust will “avoid probate.” This is important especially in California. In some states there are statutorily mandated court or attorney fees while in others those fees may be minimal, California for example has very high mandated court and attorney fees and has very long probate process, oftentimes more than 14 months. If you live in California avoiding probate through the use of a well drafted and well funded living trust by a Sacramento estate planning attorney will save your estate and family members time, headache and money.
The Probate Court Process
When a person passes away (the “Decedent”) with ownership of valuable assets, the process of transferring those assets can be complicated. The person in charge of the transfer and distribution of assets is called an “executor.” The responsibilities of the executor include the following:
- Prove Authenticity of the Will
- Get Approved by the Court to Act on Behalf of the Estate
- Inventory Decedent’s Assets
- Value Decedent’s Assets (Appraisal)
- Pay Decedent’s Outstanding Debts/Taxes
- Distribute Assets According to Decedent’s Wishes
Probate is a particularly difficult process because of the emotional aspects involved with inventorying, valuing and distributing a loved one’s assets. Having an experienced probate attorney to work with can make the process run smoother, and take the uncertainty away. Litchney Law Firms Sacramento probate attorneys can take the emotional burden off you, as the executor, and make everything run smoother for a faster, more efficient resolution.
How Long Does Probate Take?
Probate typically can not be completed in less than six months, and generally should not take more than one year. If the Probate process is to take more than one year, the executor or personal representative must file an estate tax return and provide a status report to the Court. Circumstances that lead to a longer probate process include:
- A Will Contest
- Changing of Executors
- Highly Complex Estate
- Large Number or Value of Estate Assets
- Hard to Find Beneficiaries
In these circumstances, probate can drag on for years, however, the involvement of a qualified Sacramento probate attorney can often lead to faster solutions.
Let Our Sacramento Probate Attorneys Assist You With Your Probate Matter
If you are searching for a Sacramento probate attorney, chances are you may be struggling with some difficult and emotional decisions. Litchney Law Firm’s Sacramento probate attorneys can help you through this difficult time throughout the Sacramento area. Our compassionate and knowledgeable Sacramento probate attorneys are available now for a free initial probate consultation.
We are experienced Sacramento Probate Attorneys. We have helped hundreds of individuals and families plan for the inevitable through estate planning techniques including the preparation of revocable and irrevocable living trusts, spendthrift trusts, special needs trusts, wills, powers of attorney for medical and business, living wills, medical directives, and guardianship provisions for minor children.
We are also experienced Sacramento probate attorneys and Sacramento trust administration attorneys and understand the difficulties of settling estates once your loved one has passed. Our probate attorneys are experienced and caring and will walk you through how to make and express some of the difficult decisions you need to make. You will have a great sense of relief and satisfaction once your probate process has been completed. Our Sacramento probate attorneys can guide you with great legal advice and the strategy needed to get you the results you want. Contact us today to schedule your complimentary attorney consultation by clicking HERE or by calling 916-757-6000. We look forward to helping you with all of your Sacramento probate needs.
