Probate can proceed in a smooth manner, but sometimes that is simply wishful thinking.

Complications may arise during the settling of an estate. Disputes may surface, for example, regarding the validity of a will, accusations that the legal representative (executor/administrator) engaged in wrongdoing, or issues with payment to creditors . The chance for litigation is possible in any of these scenarios and others, as well. Any of these reasons can lead to a long, drawn-out probate process that may evolve into litigation.

Here are some specific reasons why litigation may occur during probate:

• Contesting of the will: Wills are disputed by heirs, such as spouses or children, or by people who were mentioned in a previous will,, on the grounds that a person had undue influence over the testator; that the testator lacked mental capacity ; or that the will was the product of fraud or forgery.
• Wrongdoing of the executor/administrator: The legal representative (executor/administrator) is accused of wrongdoing, which could include negligence, misconduct, failing to fulfill the duties, conflict of interest, or misappropriation of funds.
• The presence of creditors: All valid debts should be paid before the distribution of any estate assets. If they do not get paid, creditors may take legal action to seek payment of those debts In other cases, heirs or beneficiaries may take issue as to whether the debt is valid and, thus, whether the debt should be paid by the estate.

Be prepared

Without the emergence of complications, such as an heir contesting a will, or a legal representative who commits a wrongdoing, the likelihood of probate litigation is scant. But things could turn for the worse, so prepare yourself if such developments come to fruition.

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All parents worry about their children’s futures. If you are a parent of a child with disabilities, those worries can multiply. What can you do to support them – especially as they approach the age of 18 and become a legal adult?

One option you may hear of is a limited conservatorship. However, it is important to understand the details of establishing this kind of conservatorship before considering this option.

Details about the limited conservatorship

A limited conservatorship is specifically meant to aid adults with developmental disabilities. They give a conservator – most often a parent – certain decision-making rights to help the conservatee manage financial or personal matters.

They provide seven particular rights to limited conservators in these cases, which include the ability to make decisions regarding:

1. Where the conservatee lives
2. The conservatee’s education
3. What medical treatment the conservatee receives
4. Access to personal records
5. The conservatee’s social or sexual relationships
6. Whether the conservatee can get married
7. If the conservatee can enter into a contract

A limited conservatorship is not designed to control your child’s life. It actually aims to support your child’s independence as much as possible once they become a legal adult. As a limited conservator, you would simply retain the legal ability to assist them and make certain decisions on their behalf.

What to know about the process

The process of establishing a limited conservatorship is involved, and you can discuss the particulars with an attorney to learn more. However, here are some of the most critical things to understand about this process:

• The court hearing: A hearing is necessary to determine if a conservatorship is appropriate. You must petition the court to begin the process. Your child will also require legal representation to ensure they have a voice in the process.
• Granting the conservatorship: It is essential to understand that the judge will only grant a limited conservatorship if the less restrictive options do not work. Therefore, you must make sure you consider all of the options available to support your child with disabilities as they turn 18.
• Specific conservator rights: We listed the seven rights a limited conservator has in these cases above. However, the judge will consider each one carefully to determine which ones are necessary. This ensures that a limited conservatorship promotes independence while meeting the child’s needs.

California law differs from many other states by allowing such arrangements. The goal is to protect your child’s needs and interests, even when they become adults. So, you must consider all of your options to do this. The best time to consider whether a limited conservatorship is appropriate is when your child with intellectual disabilities reaches age 17 1/2.

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California is a popular location for out-of-state residents to purchase vacation homes and seek shelter from the cold seasons. This second home can be a nice escape for the family – but what happens to the loved one’s special home in California if he or she passed?

The answer may be in your loved one’s will. Probate may be necessary to handle your loved one’s property after death in your home state.

If there is property in California as well, it may have to be probated there.

Two states means two probates

One probate will not cover all of your loved one’s property if their property spans states.

If your loved one owned property in two different states, and died outside of California, then it may require two separate probate cases. The case involving property in California – or outside of your home state, if over $184,500 in California – is called ancillary probate.

This is simply an additional probate specifically for non-residents who owned property in California that deals with said property.

What should you know about ancillary probate?

The basic details of what you should know about ancillary probate fall under the categories of the most common questions in “The 5 Ws,” such as:

• Why is this necessary? If there is a will, probate proves a will is valid. Ancillary probate does the same, and proves that your loved one owned this property. However, it is also necessary to allow the personal representative to obtain the property in California and the court could order it to be distributed according to the deceased person’s wishes.
• Who governs this process? The ancillary probate in California is subject to California’s probate code – not your home state’s
• When should you start this probate case? The ancillary probate can occur at the same time as your home state’s probate. In fact, the two probate courts will often cooperate throughout the process.
• Where should you start this probate case? Generally, every county has a probate court. Therefore, you should hire an attorney who helps you decide the appropriate place to file.

Ancillary probate is necessary in these cases, but it does not have to be a point of stress for your family. Understanding the basics of this process and seeking guidance from a knowledgeable probate attorney can be critical to manage a probate and its ancillary probate efficiently.

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Losing a loved one can be overwhelming. Not only are you experiencing loss, but there also tends to be a list of tasks for loved ones to complete.

If you are the named executor or the person that will handle the loved one’s affairs, in addition to making funeral arrangements, you may need to start the probate process. When you do not know what to expect, probate can seem like an intimidating process.

Here’s what you should know about probate and how long you can expect it to take.

What happens during probate?

In general, probate is the process of analyzing your loved one’s debts and assets and creating a plan for wrapping up his or her final affairs. Typically, probate includes tasks such as:

• Filing a petition with the court
• Creating an inventory of his or her assets
• Discovering his or her remaining debts
• Locating heirs (or beneficiaries if a will)
• Distributing assets according to the will or court order

Typically, one person is responsible for overseeing the probate process. When there is someone listed in the will, they are known as an executor. If there is no will, or the will does not name an executor, the court will appoint someone to be the administrator. The executor and the administrator have the same job; the difference is in how they were appointed.

How long does the process take?

The process can be fairly straightforward when your loved one’s will includes all the details you need for probate. However, the process can take significantly longer if there are unknown debts, missing beneficiaries or heirs, sale of real property or multiple locations involved (such as real estate in another state). Factors such as these can delay probate.

In most cases, California probate courts want the process completed within one year. However, when there are other considerations, you can get an extension to have more time to complete the probate tasks.

Probate can be a complex process and is typically not something you want to try to complete on your own. You should talk to an experienced professional about getting through probate.

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Creating an estate plan is a valuable way to prevent unnecessary legal conflicts and delays. However, even with a plan serving as a guide, distributing your property after you pass away can trigger fights and resentments among your loved ones.

Taking certain precautions can help minimize these potential issues and make asset distribution easier for your family.

Don’t confuse equal and fair

Dividing your property and financial assets equally among your children could seem like the most straightforward way to distribute your estate. While this could work in some cases, equal is not always fair.

For instance, if your estate is worth $300,000, giving each child $100,000 could make sense.

However, fights and resentments could arise if one of your children is already very affluent while another is struggling. Perhaps one of your children served as your care provider while another has been estranged for years. In these scenarios, leaving the same amount to every child can be unfair.

Before you opt for “equal” over “fair,” you may wish to consider individual elements like each child’s circumstances. Another example would be:  One child inherits a house valued at a Fair Market Value (FMV) of $450,000 (free and clear); and another child a house valued at $500,000 (with a $350,00 mortgage). This division is equal as to each child getting a house, but not equal as to the value. Again, is that fair?

Provide context

You have the right to make any decisions you see fit in your estate plan. After all, it is about your legacy.

That said, your decisions can be confusing, and others can misconstrue your intentions. And without you there to explain things, your family has little more than an estate plan to go on. Because of this, you might consider providing context for your loved ones.

Including statements that explain your decisions can help answer questions that would otherwise go unanswered.

Avoid painful surprises

You may have seen shows or movies where a will reading turns theatrical because of surprises left in the legal paperwork.

However, revealing shocking information in estate planning documents can potentially cause tremendous pain for your loved ones. Even if the surprise is ultimately good, people may not appreciate learning about something after you are gone.

Thus, leaving these dramatic revelations for daytime TV plots can be wise. 

Talk to your family

If one of your priorities is to prevent infighting and conflicts among those you love, talking to them ahead of time can be crucial. Having an honest conversation about your wishes gives you a chance to get feedback, address concerns and make adjustments to your estate plan before it is too late.

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People often want to leave a lasting, positive legacy when they are gone. This legacy can stretch beyond loved ones to charitable organizations and – increasingly – the environment. A small but growing preference for people regarding their final arrangements is to have a green burial.

What is a green burial?

The term “green burial” refers to measures that reduce the negative impact that final arrangements can have on the ecosystem. 

Traditional arrangements can be environmentally taxing. For instance, cremation releases significant carbon dioxide and contaminants into the air, while embalming involves toxic chemicals. Additionally, the land and water demands that go with maintaining burial plots can be enormous.

Green burial solutions aim to reduce the toll these measures take on the environment. Depending on where you live and what your personal beliefs are, some of the green burial options you might consider could include:

• Burial suits that sprout mushrooms during decomposition
• Burial pods that eventually grow into trees
• Burial in a conservation burial site
• Biodegradable urns or caskets
• Water cremation

One state even permits human composting.

If these options appeal to you, know that they are not standard arrangements. As such, if you do prefer this green approach, saying as much in your will and estate plan is crucial. Do not wait until it is too late to express your wishes. 

Protecting your wishes

Start now by researching the options available, as well as the cost. You can then start to save and set aside money to cover the cost of a green burial.

Making the decision now allows you to express your preference to trusted loved ones, including your spouse, children and family attorney. Communicating these wishes through your estate plan gives you peace of mind that others know what you want.

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Wills are some of the most common estate planning documents. However, if your family cannot find the will after your loved one passes away, it can pose a real challenge.

As we discussed in Part One of this series, Californians cannot file a will with a court before death. This applies to either a handwritten will or a typed will prepared by their attorney. Therefore, one must generally leave instructions on where your family or named executor can find the will.

Trying to find a will without any instructions can be incredibly challenging. Imagine your family rushing to search for a will that may not even exist.

Trusts may be easier to find than wills

Trusts, however, have somewhat different considerations and may be easier to be found than wills. Even if there are no specific instructions informing you that a trust was prepared by your loved one and there is no information about where the trust may be or who prepared it, there may be ways to find out if a trust was prepared and hopefully a signed copy can be found.

For example, if the decedent had real property, it is possible to search local property records by entering the address of your loved one, or his or her name, to find out if he or she was holding title in his or her own name as trustee of his/her trust. The deed my show the name of the attorney who prepared the trust transfer deed, and you can contact the attorney’s office to see if you can obtain a copy of the trust. The notary information may also be helpful.

Searching public records under the decedent’s name may help to locate a trust. For example, if the trust earns income in any way, the successor trustee may have filed a trust income return with the Internal Revenue Service (IRS). The history of these reports and records may help families locate the trust.

Trust administration might be easier as well

Most trust administration is a much quicker and easier process than a probate matter is. A probate must be established if the decedent’s assets held in his or her name at death without beneficiary designations are greater than $184,500 in California (will or no will) and the probate matter may take several years in court.

It is important to fully understand the details of trusts, and how a trust may benefit you and your family. With property transferred to the trustee/successor trustee of your trust, the trustee/successor trustee will administer the real property during a loved one’s disability and distribute the trust assets to the trust beneficiaries, within a short time period, unless the trust provides for a specific (longer) length of time.

Meanwhile, any real property, or other assets in the decedent’s name alone, will have to go through the probate process to transfer ownership via court order. That is why trusts are often a tool people use to avoid probate. And if families cannot find the will, a properly funded trust will avoid probate via intestate succession.

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Many families will begin the probate process not long after losing a loved one. The law requires the person holding the will to file it with the probate court within 30 days after death.

However, the first step is to find the will. If your loved one did not leave behind any instructions about where to find it, this is often easier said than done.

Where would a will commonly be?

In California, individuals cannot file their will in advance with the local probate court. So, you will not find the original will or a copy at the probate court.

However, there are other common places where individuals frequently store their wills and other estate planning documents, including:

• A safe deposit box
• A safe or lockbox within the home
• Locked drawers or filing cabinets
• Their attorney’s office

Perhaps you know of odd places your loved one stored other important documents or even money, such as in the pages of a particular book on their shelf. It is worth looking in those locations as well.

What if you still cannot find it?

Sometimes, the will gets lost among other documents. In other cases, it might not have existed in the first place. Regardless, there are times when family members simply cannot find their loved one’s will. In these cases, then your loved one’s estate will be subject to California’s intestate succession laws. This generally means:

1. The law will determine who the executor or representative of the estate will be
2. The estate will be distributed based on these laws, and not necessarily how your loved one wanted it to be

There are ways to avoid this kind of situation. For example, a trust can help secure a loved one’s wishes and help families avoid intestate succession. Additionally, finding a trust is often easier than finding a will. We will further discuss the details of how a trust might help in Part Two of this post.

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When you sit down to hammer out your estate plan, you have a lot of important decisions to make. In addition to where you want your assets to go, you also have to make healthcare decisions for yourself and try to foresee all possible eventualities.

In the midst of all of that, arguably one of the most important decisions you’ll have to make is who to name as the executor (also known as a personal representative) of your estate. The executor is the person who will take your estate through the probate process, which is no small task.

How do you choose the right person for the job?

What an executor does

The executor is the person who administers your estate and follows your directions as spelled out in your Will and represents your estate, after your death, from the beginning to the end of probate process. Their primary responsibility is to gather all of your assets, such as real properties, intangibles such as bank accounts, investment accounts, 401 k plans, IA accounts, stocks, safe deposit box etc., and then inventory all assets that are in your name alone, without beneficiary designations. Your executor will need to figure out if you have creditors, provide them with notice, and arrange for filing and payment of your income taxes, as well as finding out if you filed and paid taxes prior to that time. Prior to the closing of the probate, the assets on hand have to be distributed to your named beneficiaries as set forth in your Will after deductions of debts, executor compensation and attorney fees.

The executor will have to figure out how much your debts are, if a creditor has priority over another and then pay those amounts out of your estate if appropriate. If anyone brings a legal action against your estate, your executor will have to hire legal counsel and defend it on your behalf.

Traits of a good executor

First and foremost, an executor should be someone who is responsible and dependable. They will have a huge responsibility, with many people counting on them, and they will have to meet strict court deadlines.

If you can, choose someone who has a good relationship with your beneficiaries, and who they trust. Choosing a trusted individual will make it less likely that any beneficiaries will decide to challenge their administration of your estate.

Whether you name your spouse, one of your children, a sibling or a close friend, it’s a good idea to inform your chosen person of their designation. The role of executor should not come as a surprise to anyone, and by telling them in advance you can give them the opportunity to ask you questions and clear up any ambiguity while you are still alive.

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If you have a parent or other loved one who has reached an advanced age or is in poor health, you may be starting to think about the probate process that you will have to go through once they are no longer with you. You may have several questions concerning the relationship between having (or not having) a will and the terms of probate. While the probate process can be complex, it does not have to be confusing or overwhelming.

If my loved one has a will, will I still need to go through probate?

Probate is the legal process whereby a deceased individual’s affairs are wrapped up. It involves giving creditors the chance to lay claim to what the deceased owed them, paying pending taxes, litigating any challenges to the will by beneficiaries, distributing bequests and more.

Probate is not just for people who die intestate (meaning without a valid will). Even if your loved one has a properly executed will when they die, they will likely still need to go through the probate process – unless they fit under certain specific exceptions.

Under California law, certain estates do not have to go through the probate process. For example, if the deceased arranged for all of their assets to transfer upon death, through a trust or other method, they can successfully avoid probate. If the estate is valued at $166,250 or less, you can also avoid probate if you wish to.

What if they die without a valid will?

If your loved one dies without a will, a probate court will have to oversee the process of distributing the deceased’s estate according to California’s intestate succession statute. This statute outlines exactly who will be entitled to what, and the order in which people can lay claim to a portion of the estate.

When someone dies intestate, and it is determined that a probate proceeding is necessary, the court will have to assign a personal representative to oversee the administration of the estate and to stand in for the deceased in any legal issues.

The idea of having to go through the probate process can be intimidating and discouraging. However, with the proper guidance, even the most complex of cases can be manageable.

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