A loved one passes away without a trust and we have to go through probate. What is probate?
Probate is something that we want to avoid but it is also something my firm does a lot and rather well. We’ve done hundreds and hundreds, maybe a thousand or more probate processes for families all over Southern California. It really starts with whether or not there was a will. Even if there was a will, we’re still going to have to go through probate and that whole process.
We start by filing with the court. To be appointed, the court will set a hearing about eight to nine weeks out. In that hearing, a person will be appointed as the administrator or the executor if there’s a will, and the process starts from there. Once they are appointed, they are issued Letters of Administration/Letters of Testamentary. This is a document that lets the administrator go and wind up a person’s affairs.
Usually, the family has agreed on a person to be the administrator or the will clearly states it. In those situations, we pick a realtor, we look through the mail to see if there are any debts, and then once the administrator is appointed the 4-month creditor’s period starts. The first two to three months are dedicated to getting appointed and then the next four months are for when creditors can show up and “speak now or forever hold their peace.”
The way that creditors find out if somebody owed them money is we publish a notice in the obituary section of the newspaper right next to the publication for all the probates.
Once that 4-month period is over, right around when we’re selling the house and paying any debts, we can file a petition for final distribution. We say, “Hey, court, we got appointed, we gave all the notices required by law, we paid all the taxes if there were any, here’s what’s left. There’s three kids and they should each get three shares, please approve it so.” The court will then set another hearing about two to three months after that.
In our office, probate lasts around 10 months from start to finish. In California, it’s closer to a year and a half from start to finish. We can’t always control a hearing from getting continued, but we really strive to get the family through the process as quickly as possible. It’s a matter of waiting for it to go on and it’s not much different from if there was a trust.
We handle all the work. If a person is having issues with being able to pay for some of the items, many times the companies that we work with will wait to get paid until there is money.
A trust is going to be pretty private but a probate is a matter of public records?
Yes. It is a matter of public record and it’s unavoidable at that point. It is definitely unfortunate that we have to go to court but there’s a process to do this as well as it can be done. Our probate clients almost immediately come back and do a living trust so that their kids don’t go through the process. We make it as easy as possible.