Folsom, California Probate Attorney

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Folsom Probate Lawyer

The death of a loved one is among the most difficult things a person will ever have to experience. Under these circumstances, the last situation most people want to deal with is a complex struggle in probate court. Unfortunately, the probate process has a reputation for being overwhelming, drawn out, and extremely complicated. However, with compassionate guidance from a skilled Folsom, California probate attorney, probate can serve its purpose without becoming another source of grief.

If you need help with probate in California contact McCunn Law today.

If you are involved in the trust probate process, you need a compassionate probate attorney who can protect you and your family’s best interests. For more information about our probate and estate services, contact our office online or call (916) 773-6100 to speak with a member of our team today.

What Is Probate?

At its core, probate is a fairly simple concept—it exists to file and validate any will documents created by the deceased. When an individual passes away, their assets and debts must be distributed and paid, respectively. Instead of leaving the assignation of assets and debts to an individual or the grieving family, probate is intended to allow the court to administer the estate and handle any disputes that arise.

The probate court has several important duties throughout the administration process. The court must assess the deceased individual’s assets, settle all debts and taxes with any debtors, and distribute the remaining assets to any heirs as defined in the will. If the decedent dies without a will or a living trust, the estate will need to be distributed fully in probate. The court is also charged with identifying an executor, or personal representative—usually a surviving spouse, adult child, or other trusted individual named in the decedent’s will—to summarize and value the assets, pay outstanding bills, and enable the court to distribute assets to the beneficiaries. In general, probate court works with the executor to enable the closure of the estate.

On the surface, the probate process sounds quite straightforward. However, more often than not, probate court is not a simple experience, especially if the decedent failed to create a will or if there are disputes regarding the estate. Probate can be a highly bureaucratic process, full of legalese and complications. It can also take a long time in some instances, delaying the distribution of assets.

If you are facing Folsom probate court, it is time to reach out to a trusted estate attorney. With an attorney’s guidance, the probate process can feel far more manageable. An attorney can help you ensure each step is completed thoroughly and on time, speeding the probate proceedings as much as possible.

What Does a Probate Lawyer Do For You?

When you hire a Folsom probate lawyer, you will have someone to guide you through the entirety of the probate process, either as a beneficiary of the estate or as executor of the will. As mentioned, the probate process is complex, and involves a number of in-depth steps to fully complete. As executor, you must identify the assets held in the estate and accurately summarize them for the court. Similarly, you must identify any debts or taxes owed and ensure the estate settles each before distribution of the remaining assets. Through each step, your experienced probate attorney will be at your side.

A probate attorney can also manage disagreements regarding the estate, whether you are the executor or a beneficiary. Depending on the quality and specificity of the will, conflicts can arise regarding the final wishes of the decedent. If the circumstances under which the will was drafted were uncertain, is also possible for individuals to challenge the will’s validity, altogether. Since the probate process begins with validating the will, when this sort of complicated situation occurs, a probate attorney can be an invaluable asset to your case.

The responsibilities of a probate attorney are also dependent upon the overall value of the deceased individual’s assets and the complexity of the estate. In addition, a probate attorney can be especially beneficial if the decedent did not leave behind a will or trust. When this scenario occurs, California courts must use the laws of intestate succession to name an executor and distribute assets. Disputes commonly arise under these circumstances, making a Folsom, California probate lawyer an essential component of settling the estate.

Sometimes, you will see the terms probate lawyer and estate attorney used interchangeably. Estate attorney is also an accurate term, and refers to the lawyer’s direct involvement with the estate of the deceased individual.

How Long Does Probate Take in California Without a Will?

Most individuals are well aware that probate can be a lengthy and often exhausting process. However, how long does this process actually take? How much time can you expect to be added to the probate process if the deceased individual has not left a last will and testament?

The simple answer is that there is no truly simple answer—time in probate depends heavily on the caseload of your probate court, the size and complexity of the estate, and other factors unique to each individual case. On average, a California estate may spend about 12 months in probate. Some simple estates can make it through the probate process in around nine months, while others may take well over a year or even two.

Keeping this 12-month baseline in mind, there are a few circumstances that can slow down the probate process. For example, if there are an especially large number of beneficiaries, the probate process is likely to be delayed due to the necessary distribution of assets to multiple individuals. In addition, when there are many beneficiaries, there is a greater likelihood that disputes will occur. If a will is unclear, difficult to validate, or challenged by a beneficiary, the process will take much longer. Finally, if the estate owes taxes, probate court must wait until the proper paperwork has been submitted to the IRS and received a response, which can take up to nine months.

If the decedent did not create a will, the probate process will take even longer than the 12-month average. A party will need to petition the court to act as executor of the deceased’s estate. In instances where multiple parties are interested, the court will decide based upon the parties’ qualifications. Finally, California intestate succession statutes must be used to determine the distribution of assets, which often causes additional disputes and other challenges that may further lengthen the process.

Avoiding Probate Court With a Trust

As we have established, probate court is rarely enjoyable for anyone involved and has earned its reputation as a draining, complicated procedure. For this reason, most individuals would rather their beneficiaries avoid probate entirely. Fortunately, a skilled probate lawyer and estate lawyer can help you craft a strategy to distribute your assets without forcing your beneficiaries to endure probate.

One of the most commonly accepted methods of avoiding probate court is by establishing a trust. Essentially, a trust assigns another party, known as a trustee, the responsibility of holding your assets and then distributing them according to your wishes after your death. If you choose a living trust, you can retain ownership of all assets within the trust during your lifetime, and add or remove assets as necessary. After your death, assets and bills are handled automatically without the need for probate. However, in most cases, even if you establish a living trust, you will still need to create a simple will, especially if you need to appoint guardianship for any minor children.

While living trusts are an ideal solution for many individuals, they are far from perfect. It takes time to adequately prepare a living trust, often longer than it takes to create a will. Trusts also entail a good deal of ongoing maintenance, especially if you must add or remove assets and beneficiaries. Adjustments to a trust can also prove complicated as compared to a simple will, and depending on your estate, it is not always a wise idea to create a living trust solely because you’d like to avoid probate court. However, an estate attorney can help you determine whether a trust is right for you, and ensure any ongoing maintenance and adjustments are handled properly.

Is a Trust Necessary to Avoid Probate?

Trusts are an effective strategy to handle your estate without the need for probate, but are they really the only way to keep probate court out of the picture? In fact, there are other ways to avoid probate court without establishing a trust. These methods involve transferring assets to beneficiaries during your lifetime or planning for their immediate transfer upon your death, making it possible for them to receive assets as quickly as within a few weeks—much more quickly than the probate process. Alternatives include:

  • Gifts. It is possible for you to create gifts to your beneficiaries prior to your death, either in the form of monetary assets or physical property. California does not assess a state gift tax, but your gifts are still subject to federal gift taxes. Still, you can give up to $15,000 to each recipient per tax year without experiencing federal tax.
  • Transfer or pay-on-death designations. You can establish a pay-on-death or transfer-on-death designation on a bank account. Your beneficiary will receive these assets upon your death but will hold no ownership during your life.
  • Joint tenancy. You can choose to hold certain assets jointly (with right of survivorship), usually with a spouse. The assets are then already under the control of your joint tenant at the time of your death.
  • Name a beneficiary. Certain retirement accounts, life insurance policies, and other assets allow you to name a beneficiary for distribution after your death.

These methods do come with their own drawbacks and limitations and do not necessarily mean you can avoid probate completely. In most cases, if you are looking for the extensive flexibility of a will, as well as a way to efficiently distribute all types of assets, a living trust is the simplest solution. Even if one of your primary beneficiaries passes away before you do, a living trust will allow you to select alternate beneficiaries to inherit your assets—a situation made more difficult when using some of the above solutions.

Are Probate Records Public in California?

Generally speaking, yes—most California probate records are available to the public. Probate records include a number of important files, including the last will and testament, the initial probate petitions, and any additional documents filed regarding the administration of the decedent’s estate. The public nature of probate proceedings and the privacy concerns raised as a result are a primary reason many people wish to avoid probate court.

Essentially, any individual in the state of California has the ability to view public probate records. In order to request this file, the individual will need to visit the probate clerk’s office and provide the probate clerk with the decedent’s name, as well as the date of their death. They will be able to review these documents at the courthouse, or they can request a copy of the necessary probate records for a small fee.

However, there are exceptions to this rule, and instances where probate records and documents may be kept private rather than viewable by the public. Several kinds of records have the potential to be deemed “confidential,” including adoption proceedings, records from juvenile court, grand jury proceedings from before indictment, proceedings pertaining to the termination of parental rights, medical reports and records, arrest reports, as well as other types of criminal history documents or information.

If a decedent’s will or probate file contains any of these statutorily confidential documents, the court may order that the will be sealed, rendering it unavailable to the public. In some instances, only a part of the will (including the confidential information) will be sealed, leaving the rest publicly available.

Trusted Folsom, California Probate Attorney

Probate court can prove time-consuming and confusing, especially for those without experience. These difficulties can be exacerbated when you are already experiencing the grief of losing a loved one. No one should be forced to navigate the process alone. Instead, secure the services of an experienced Folsom, California probate lawyer.

The estate planning and probate attorneys at McCunn Law have a deep understanding of complex probate court proceedings and know how to navigate the system with ease. If you are facing a complicated probate situation without a will or have been designated as the executor of an estate, a probate attorney can guide you through the necessary proceedings. For more information about our probate court services or to schedule a consultation with McCunn Law, contact us today.

Why Choose McCunn Law

Our methods for handling business owner divorce and family law issues are unique. We offer legal assistance for a range of family law cases, including:

Mr. McCunn specializes in a holistic, project management approach which empowers you to make your own decisions throughout the process. He has a reputation as a peacemaker and his honest and pragmatic attitude towards divorce and other family law issues ensures you only pay for the services you need during your case.

“McCunn Law is a high-quality and highly knowledgeable legal team. I went into a consultation regarding child custody and was extremely happy with the plan and ultimately the results of my case. They create a plan with the client’s needs and wants in mind. Drummond is also great working with regarding what kind of budget a client would be able to afford. If I have any more legal needs in the future this is the office I will use every time.”

Megan P.

“McCunn Law is a high-quality and highly knowledgeable legal team. I went into a consultation regarding child custody and was extremely happy with the plan and ultimately the results of my case. They create a plan with the client’s needs and wants in mind. Drummond is also great working with regarding what kind of budget a client would be able to afford. If I have any more legal needs in the future this is the office I will use every time.”

Megan P.

“McCunn Law is a high-quality and highly knowledgeable legal team. I went into a consultation regarding child custody and was extremely happy with the plan and ultimately the results of my case. They create a plan with the client’s needs and wants in mind. Drummond is also great working with regarding what kind of budget a client would be able to afford. If I have any more legal needs in the future this is the office I will use every time.”

Megan P.