Encinitas Wills & Trusts Lawyer
Which would you prefer to do, leave your family a Deed or a debt?
Of course you want your family to have the Deed to your home. You selected your home so that it would provide the environment you want for your family. You want your family to have the property or you wouldn’t have bought it. Protect yourself and your family by titling your home in a properly prepared estate plan that has the terms and conditions you decide to include on how to pass your property to your family, instead of what the State would dictate in the event you do not have an estate plan. An alternative estate planning tool many homeowners are using to significantly reduce the costs of passing their homes and estates to their heirs is a Living Trust. Probate costs are based upon the gross value of an estate, without regard to a mortgage on the property. Heirs may be faced with selling assets to pay the costs of transferring property.
There is a better solution to that problem. At The Law Offices of Joseph Adelizzi, our wills & trusts lawyers can help you to prevent that from happening to your family.
© 2019 The Law Offices of Joseph Adelizzi
What should I know about the probate process?
A personal representative is required to prepare and file an inventory and a list of claims after the representative is approved by the court. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. [Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is filed late, the representative could be fined and removed, which would slow down the process (and raise tempers).
One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the representative must also keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. Some states provide “permissive notice” to unsecured creditors and this may avoid paying some unsecured claims.
The representative must keep the beneficiaries in the loop, to include providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the independent executor.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the probate process.
As you can see, being a representative is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role of representative. The representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.
It’s okay to ask for help with probate.
So you see, there is more than a little pressure on the personal representative during the California probate process. As a result, it is essential that the representative work in concert with Joseph Adelizzi, an experienced wills & trusts lawyer, to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines.