02 Sep Father Dies in Freak Accident; Son Left to Deal with Probate
A longtime client called us recently to see if we do Probate, which we do. His father has just been killed in a freak boating accident, and despite the urging of his three children over the years, he’d started—but never completed–a Living Trust. He’d laughed it off, believing that there was plenty of time to do this when he got old.
Old never arrived
Now, at just 68, he was dead. All three children had had their ups and downs with their father over the years because of his lifestyle. A risk-taker in life as well as business, he seemed to enjoy living on the edge. He’d made a lot of money, but he’d also lost a lot and had taken a beating in the recent recession. My client is dealing with a full range of emotions—anger at his father for his recklessness, for not having prepared a Living Trust and their having to deal with what is undoubtedly going to be a messy Probate process. He is also struggling with guilt—he was supposed to have gone on this ill-fated trip, and he might have been able to prevent the accident. Most of all, he is left with grief and sadness at the prospect of life without his father. Despite his frustrations, he had also loved his father deeply and they had shared many important life events.
If no one is contesting the Estate, you do not need an attorney
Many people think that Probate is an extremely complex legal process for which they need the help of an attorney—and this is not necessarily the case. If none of the heirs is contesting the Estate, California Document Preparers can help you with Probate, and in fact, this is a growing practice area for us. Probate is actually a very methodical process for which there are four basic steps.
- File a petition and give notice to heirs and beneficiaries. The Probate process begins with the filing of the petition with the probate court to either (1) admit the will to Probate and appoint the executor or (2) if there is no will, appoint an Administrator of the Estate. Notice of the court hearing regarding the petition must be provided to all of the decedent’s heirs and beneficiaries. Probate is a public process; notice of the hearing is published in a local newspaper to notify unknown creditors, etc. of the beginning of the proceeding.
- Assets. Following appointment by the court, the personal representative must give notice to all known creditors of the estate and take an inventory of the estate property. The personal representative then gives written notice to all creditors of the estate based upon state law; any creditor who wishes to make a claim on assets of the estate must do so within a limited period of time. An inventory of all of decedent’s probate property, including real property, stocks, bonds, business interests, among other assets, is taken.
- Liabilities. All estate and funeral expenses, debts and taxes must be paid from the estate. The personal representative must determine which creditor’s claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative is permitted to sell estate assets to satisfy the decedent’s obligations.
- Legal title in property is transferred. Following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, the personal representative petitions the court for the authority to transfer the remaining assets to beneficiaries. Once the petition is granted, the personal representative may draw up new deeds for property, transfer stock, liquidate assets and transfer property to the appropriate recipients.
In this case, depending on the complexity of the father’s financial affairs, it may take some effort to understand the full scope of his assets and liabilities, but we help our clients with this process. At California Document Preparers, we urge everyone to spare your heirs the heartache of Probate and prepare a Living Trust. We’re here to help you.