Most people who ask this question have recently lost a loved one who died without any estate planning documents in place. This can be a confusing time, made worse by the emotional strain of losing someone you love. Luckily for you, an attorney who is a Certified Specialist in Estate Planning, Trust and Probate Law can help you handle the legal aspects of your situation.
Someone who dies without a will is said to have died intestate and their estate will be subject to probate. The California Probate Code dictates exactly how intestate matters should be handled. In these codes, the law has a list of preference for certain family members to take the role of administrator of estate in these situations. Usually, this responsibility is given to their spouse or their adult children, but can work through the family tree depending on the specific situation. In many cases, a family will nominate a person to be the administrator and the courts can choose to accept or deny that nomination. If the people who are entitled to the role of administrator cannot agree on who should be nominated, the courts may select a third party, non-related person to administer the estate.
If you want to be the administrator of an intestate estate, your best course of action will be to work with an attorney. An attorney will help gather the required nominations from entitled family members and then go to court on your behalf so the judge will appoint you as administrator. In some instances, a bond will be required, but working with an attorney can help eliminate or reduce the need for a bond. If a bond is required, the estate pays for it, which means the cost of the bond is shared by all beneficiaries. The administrator must be bondable, which usually means they will need to pass a credit check.
If you are considering handling this probate on your own, I’d like to share a personal observation with you. Every time I go to court to handle a probate matter for one of my clients, I witness several cases where people are attempting to complete probate on their own. Most often, these cases experience unnecessary delays because the family lacks experience and knowledge of the probate code. Missed deadlines, incorrectly filed paperwork, or overlooked requirements can lengthen the probate process and lead to higher liabilities and delays in inheritance distribution.
It is important to understand that the probate process is lengthy. With the requirements set forth in the probate code, an experienced and knowledgeable attorney will be able to complete the average California probate in about a year. Without the help of an attorney, many people find the probate can take much longer usually doubling the time it would have taken an experienced attorney which means a minimum of two years. Nobody receives their inheritance until the probate is complete, so choosing to handle a probate on your own, without the help of an attorney, can drag out the process and delay your inheritance.
Working with an attorney is an effective way to complete the probate process. An attorney will make sure that forms are prepared properly and filed in a timely fashion, thereby streamlining the probate process. Your attorney will help determine who has priority as administrator and coordinate with the family to sign required paperwork.
Before you meet with an attorney, it will be helpful for you to determine the types and amounts of assets and liabilities that your loved one has left behind. When you work with an attorney, they may be able to negotiate, reduce, or eliminate certain liabilities. It will be helpful for you to gather a list of their large tax liabilities, outstanding medical debts, medical liabilities, real properties, mortgages, property taxes, insurance, investments and other bills and finances. It is in your best interest to not contact these companies until you have spoken with an attorney. Contacting those companies before speaking with an attorney can greatly increase the chance that the estate will have to pay more thereby lowering the inheritance of each beneficiary. Sometimes there are legal strategies that can reduce or eliminate any debt if done properly.
As you can see, although it is possible to represent yourself as administrator to an estate without a will, it is much more efficient, cost-effective, and less stressful to have an attorney on your side. Even if you think you want to complete the probate on your own, you should meet with an attorney for a consultation before you proceed. At our office, your initial probate strategy session will be at no charge. After that meeting, you can decide whether you want to work with me or if you’d like to complete the probate on your own. Matthew Hart is a California Licensed Attorney who is an Estate Planning, Trust & Probate Law Specialist certified by the State Bar of California. His office is in Antioch and he can be reached at 925-754-200 or www.MatthewHartLaw.com.
