Probate

Probate Administration & Litigation

Probate is the legal process used to distribute a person’s property after their death.  The person’s assets are inventoried, properly documented debts are satisfied and any remaining property is delivered to the person’s heirs.

If a person prepared a Last Will and Testament, it names their heirs.  If not, California law provides basic instructions for distribution to the person’s relatives.

Most probates involve the services of a Personal Representative, a person appointed by the Court to handle the Estate’s administration.  Most probates are not contested and few involve adversarial proceedings or litigation.  The most common forms of probate include:

Summary Administration

An simplified form of probate, with no Personal Representative, and is only available for Estates valued at $150,000.00 or less, if all heirs consent and are parties.

Formal Administration

The standard form of probate in California required for Estates valued at more than $150,000.00, or if all heirs don’t join in a Summary Administration or any which require unusual activities in the course of the Estate’s administration.  A few weeks after filing the request, the Court appoints a Personal Representative and issues Letters of Administration.  The assets of the Estate are itemized in an Inventory, Notice of the proceeding is published and a ninety (120) day delay is allowed for exclusion of any creditor’s Claims that may result.  Once the creditors’ Claims period has expired a Final Accounting is prepared, proper claims are paid and distributions are made to the appropriate heirs.

Probate Litigation

When all the parties interested in a probate do not agree with the proposed administration the matter becomes contested and litigation may be necessary to resolve the dispute. Common types of probate litigation include:

Will Challenge often based on:

• Undue Influence – a change to a Will prompted by coercion or inappropriate actions
• Lack of Testamentary Capacity – a change to a Will the person didn’t truly understand

Actions against the Personal Representative, including:

• Demand for Accounting – the heirs, as well as any unpaid creditor, are entitled to an accurate Accounting and may Object to any discrepancies.
• Breach of Fiduciary Duty – a Personal Representative must properly carry out their duties and may be accountable for improper actions or failure to perform a necessary act.
• Determination of Heirs – if a person was estranged from their family, leaves no obvious heirs or heirs can’t be located the Court may need to determine who the proper beneficiaries are.