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Home » Resources » Frequently asked questions » Probate FAQs

Probate FAQs

    • What is the function of probate?

    • The probate court is responsible for a number of different matters that are related to the estate administration process. If you use a last will to state your final wishes, it would be admitted to probate by the executor that you name in the document. This court would supervise the administration of the estate.

      It should be noted that intestacy matters are handled by the probate court as well. The term “intestacy” is used to describe the condition of passing away without any estate planning documents at all. Under these circumstances, the court would appoint a personal representative that would administer the estate.

      Final debts would be paid by the personal representative and other details would be attended to as necessary. Ultimately, the court would apply the intestate succession laws of the state of California to determine who will inherit the remainder.

    • Is there any reason to be concerned about probate?

    • Yes, there are some drawbacks that go along with the probate process that you should be aware of before you make any final decisions. During probate, the executor is required to notify creditors about the death of the testator. They are given a certain amount of time to come forward seeking satisfaction.

      Depending on the size and scope of the estate, inventorying the assets and arranging for appraisals, and in some cases, liquidation of property, can be quite time-consuming. At the end of the day, the simplest case may pass through probate in six to eight months, and a typical case can take up to a year. More complex situations can be drawn out for longer periods of time.

      No inheritances can be distributed during probate, and this is one of the pitfalls. Considerable expenses accumulate during probate as well, and this is the other major negative. The executor is entitled to payment, and a probate lawyer will often be called in, so there are legal fees.

      An accountant may be involved, and you can add in the court’s filing fee, appraisal and liquidation expenses and incidentals. In all, a significant percentage of the estate can be consumed during probate. This reduces the amount of the inheritances that will be received by the rightful heirs.

    • Can someone contest the validity of a legally executed will during probate?

    • Probate does present a window of opportunity for anyone that wants to challenge the legitimacy of a will. This is a good thing in the biggest picture because in rare cases, there can be something amiss.

      For example, a let’s say that a man in his 80s gets married to someone much younger. He dies six months after the wedding, and the surviving spouse presents a will that leaves her everything, and the children get nothing.

      The children could present a challenge under these circumstances during probate. This being stated, completely scurrilous will contest are not completely uncommon, but the probate court must hear the contentions. This is a major hassle for the people named in the will, and it will slow down an already lengthy process.

    • Is there any way to avoid probate?

    • There are some types of asset transfers that are not subject to the probate process. These would include life insurance proceeds and assets that are in payable on death accounts and individual retirement accounts.

      To proactively implement a total probate avoidance strategy, you could use a revocable living trust as the centerpiece of your estate plan instead of a last will. The trustee that you name in the document would be empowered to distribute assets to the beneficiaries after you are gone. These distributions would not be subject to the probate process.

      This is one of the major advantages that go along with the utilization of a revocable living trust, but there are several others. You can account for possible incapacity if you name a disability trustee in the document, and you can include spendthrift protections.

      With regard to the matter of estate challenges, there is no direct built-in opportunity to issue them when a living trust is used. A disgruntled party could file a lawsuit, but this is costly and complicated.

      Plus, if you suspect that one of the beneficiaries will be unhappy with the terms, you can include a no contest clause. This would trigger the disinheritance of anyone that is named in the will that files such a suit, so it serves as a powerful disincentive.

Schedule a Consultation Today!

If you would like to discuss probate avoidance or any other estate planning objective with a licensed attorney, our doors are open. To set up a consultation appointment, call us right now at 310-337-7696. You can alternately send us a message through our contact page.

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Testimonials

Client Review
July 29, 2020
    

We need to update our Living Trust and attended Schomer Law Group’s seminar. Afterwards we made an appointment and were impressed by the attention Scott Schomer and Liran Aliav gave to our case answering all questions and making suggestions how to minimize the estate tax. All the office staff is very friendly and we highly recommend Schomer Law Group.

Frank & Jutta R
Client Review
July 29, 2020
    

Mr. Schomer does an amazing job at explaining all the intricacies of establishing a trust. He and his team help you every step of the way so you always know what to expect and what you are preparing for. Best education you can get and the best gift you can give your family.

Paula M.
Client Review
July 29, 2020
    

We put off getting a trust for years. After attending a seminar with Scott Schomer we realized that the time had come to get a trust. We were given very good reasons for why we should get a trust. No pressure, just the plain facts. We are very relieved and happy to finally get our trust. Scott and Cesar were very knowledgeable, helpful and listened to our ideas of what we had to say. Any questions that we have now and in the future they are available to assist us to solve them. I recommend the Schomer Law Group and I wish we knew about them years ago.

Phillip G.
Client Review
July 29, 2020
    

When you’re presented with an invitation to attend in a mailer, you may have reservations, this was a truly gift!! My wife and I were educated and guided through the process of creating a family trust.
Both of our parents had attorney’s that “worked” with wills/trusts, but came up short. Fortunately, the Schomer Law Group was there! This is a group of attorney’s that only specialize in estate planning, law, and financial advice, so you know you’re getting expert and personalized advice. This is the best money we’ve ever spent!! Thank you!

Bob L.
Client Review
July 29, 2020
    

We knew we had to update our 10 year old ( 20 page ) trust. After several detailed meetings, Liran and Cesar produced a large ( 300 pages + ) highly detailed trust document that we have used to make sure our family estate is well managed and clearly understood.
They were all very helpful in answering myriad questions and explaining all the various options…

We would strongly recommend the Schomer Law Group to anyone with an estate of even modest means, to assure proper planning…

Bob S.
Client Review
July 29, 2020
    

We had contemplated updating our will and starting a trust for a number of years. After attending a talk by Scott Schomer we realized we were long overdue and the potential downside of not having our affairs in order was significant. Scott and his excellent team made the process simple and seamless. They were great listeners, addressed all our concerns and even pulled and processed all the paperwork from our financial institutions. If you are looking for assistance with estate planning, wills and trusts, we highly recommend Schomer Law Group.

Robert F.
Client Review
July 29, 2020
    

Very competent & informative – friendly atmosphere – ready to answer the most mundane questions – relaxed.

Joan S.
Client Review
July 29, 2020
    

Mr. Schomer was excellent in getting our family trust and estate affairs in order. My husband and I had put off doing this and Scott really made the process easy! He is very passionate in making sure his clients get all that they need and we really appreciated it. I would highly recommend him and look forward to the many years he will be available to assist our family.

Kim

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