What Is a Probate Attorney, and What Functions Do They Perform?

Probate

What is a probate attorney, and what do they do? Many people wonder whether it’s even necessary to hire a probate attorney in California, CA. 

State laws allow almost anyone to act as an executor and complete the probate process. However, it is wise to seek legal advice from a state-licensed attorney when the estate is complex. 

Probate law in California is complicated. It’s not easy obtaining the necessary documents, let alone completing them accurately. The probate attorneys at Klosek Law Office can help you navigate probate law. 

What Does a Probate Lawyer Do? 

A probate lawyer acts as an objective third party and follows the deceased’s wishes detailed during the estate planning process. Among other things, the attorney will help the administrator manage any cash in the estate, gather all the assets the deceased had, file a creditor claim for funeral expenses (so that loved ones can get reimbursed), and help guide the administrator in the payment of any outstanding debt and estate taxes.  

As the executor, the attorney has a duty to ensure that they properly manage cash, real estate, and other assets for the benefit of the beneficiaries of the estate.

They will first determine which estate assets and debts are in play. The attorney must alert creditors about the death and see to it that they are correctly notified about the probate and reimbursed if their debts are valid and timely filed with the probate court (the administrator can wait until a creditor claim is filed or exercise his or her discretion to informally pay the debt if there is sufficient money in the estate to pay debts and the debt is valid). To deal with the probate distributions to the heirs and beneficiaries and file what’s called the “Petition for Final Distribution”, the executor must first pay all the bills and taxes (property, personal, estate). Sometimes, however, not all tax returns are yet due or payable–in such a situation the executor can request a reserve, so that future tax obligations can be paid from the reserve that has been set aside.  

If the administrator must sell estate assets to pay debts and creditors, the administrator has a fiduciary responsibility to obtain a fair market price for each asset sold. 

In some cases, the attorney may need to track down heirs and the assets of the individual. If a beneficiary inherits real estate, the probate attorney will transfer the property into the new name upon the close of the probate. For example, the judge will sign an order for final distribution, and this order is then recorded with the recorder’s office to put the beneficiary on title and put the world on notice with a recorded document. 

When Does Probate End?   

A typical probate lasts from 9 months to one year. More complex issues can drag on for several years. Where there is a dispute between the heirs that cannot be resolved, litigation may ensue which may delay the probate process. 

There are typically two hearings. The first hearing is required to appoint an administrator. The second hearing is required to obtain authority from the judge to distribute assets (the administrator submits a report of all the acts that have been taken and the judge either approves or disapproves the report, which may lead to further proceedings). 

If the beneficiaries are in agreement, certain steps can be taken to expedite the process. For one, the beneficiaries can agree to waive bond so that the administrator does not have to go out and pay for it. Second, the beneficiaries can agree to waive an accounting (otherwise an accounting may be required which delays the process and is an added expense). 

Is a Probate Lawyer Essential for a Simple Estate? 

The process may be avoidable where there are joint assets held in the name of inheriting partner (either as joint tenancy with right of survivorship, or community property with right of survivorship for married couples).. There is also no need for a full probate when the estate is small in size (summary probate proceedings such as petition to determine succession to real property may be used if the property is valued under $166,250)–however, it is still highly recommended that a probate attorney be hired for summary probate proceedings as a probate court hearing and probate court filings are required. 

Should probate be required under California law, it’s advisable for clients to seek sound legal advice. There are several steps that executors must follow, and missing these steps could result in severe consequences. 

Reach Out to the Professional Team at the Klosek Law Offices

If you’re dealing with the death of a loved one, the team at the Klosek Law Office will provide professional, empathetic support. We have experience estate planning, drawing up trusts or wills, and acting as an estate’s administrator or executor. 

Schedule your consultation today by calling (916) 290-7560 in Sacramento, CA, and we’ll ensure that we follow each probate procedure necessary.