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Frequently Asked Questions About Probate

Bochnewich June 14, 2023

Probate can involve some of the most complex legal proceedings of any civil case. Below are some of the most frequently asked questions about probate to hopefully answer your most pressing questions. Our experienced Palm Desert probate attorneys can illuminate some of the finer points about probate and its legal functions.

Q: What Is Probate?

A: In the simplest terms, probate is the legal process of transferring ownership of a deceased individual’s property to new owners. If the deceased had a will or estate, the state has a duty to fulfill their wishes, including in these documents to a reasonable extent. This is testate probate. Intestate probate is a different process that occurs when a deceased individual had no will or estate.

Q: How Long Does Probate Take?

A: Depending on the complexity of the deceased’s last will and wishes and the presence of legal issues within their personal documents, probate can take anywhere from weeks to months or even years for very complicated probate cases. The time required for probate also fluctuates based on the actions of those mentioned in or involved with the estate in question.

Q: Who Can Initiate Probate Proceedings?

A: When most individuals create their wills or estate plans, they include their preferred choice of personal representative. This is the person who will initiate probate proceedings on behalf of the deceased. They have a legal duty to faithfully execute the instructions left for them in the deceased’s will or estate plan. If the deceased had no will or did not name a personal representative, the responsibilities of a personal representative typically fall to the spouse or a close relative if the deceased was unmarried. Anyone who has a valid claim to any part of the deceased’s estate has the ability to start the probate process.

Q: When Is Probate Necessary?

A: Probate is a necessary legal process whenever there is any dispute about the contents or intentions of a deceased individual’s last will or estate. If all parties with valid interests in the deceased’s estate agree to the instructions for the estate, probate is still necessary for legally transferring ownership of the deceased’s property and assets.

Q: How Does Probate Apply to An Uncontested Will?

A: The probate process aims to resolve disputes among the beneficiaries of an estate and ensure the executor or personal representative of the deceased fulfills their duties. However, in some cases, there is no room for debate with an estate and the probate process executes the legal transfer of ownership of assets named in the estate.

Q: Is Legal Representation Necessary During Probate Proceedings?

A: Depending on the nature of the probate proceedings and any legal questions about the estate, it may be wise for the parties involved to consult with Palm Desert probate lawyers during the probate process. This is an especially good idea whenever any party contests the validity or authenticity of a will or any of its contents. Experienced probate attorneys can field questions about the probate process and help interested parties explore their legal options concerning the estate.

Q: Who Has the Legal Right and Duty to Handle the Probate Process on Behalf of An Estate?

A: When an individual creates a living trust, writes a last will, or forms an estate, they typically name a personal representative or executor as the one responsible for discharging their wishes for the property and assets they leave behind.

Q: What Are a Personal Representative’s Main Duties During Probate?

A: The personal representative’s goal and legal duty is to oversee the transfer of ownership of the assets listed in the will or estate. In the event the deceased created a living trust, the trust does not “die” with the creator; legal authority as a personal representative falls to the trustee named in the living trust.

Q: Can I Refuse to Assume the Responsibilities of A Personal Representative if A Decedent Named Me as Their Personal Representative without My Knowledge?

A: You have the legal right to decline your nomination as an executor or personal representative. It’s also possible to quit your position after accepting responsibility as a personal representative, but the probate court may require you to undergo a full accounting of your time served as the estate’s personal representative.

Q: What Happens if A Personal Representative Fails to Fulfill Their Responsibilities?

A: Acting as the personal representative of a deceased’s will or estate is a legally binding fiduciary duty. If the personal representative fails to perform necessary duties such as filing tax returns or improperly disbursing assets and funds from the estate, that representative is personally liable for any damages to the estate.

Q: What Is a Contested Will?

A: A “contested” will is simply any will in which those with interest in the will do not agree to some or all of the will’s contents. Anyone with a valid claim on any part of a deceased individual’s estate may raise a dispute within probate. For example, some may claim the deceased’s will was created under duress or when the deceased was unable to coherently change such an important legal document. It’s also possible for someone to contest one aspect of the will, such as property incorrectly disbursed to the wrong party or incomplete sections of the will.

Q: Is There Any Way to Avoid Probate of My Estate?

A: Forming a Living Trust is one of the few ways you could potentially avoid the probate process. When you create a Living Trust, some or all of your property and assets go into a protected trust under the control of a trustee or designated personal representative. After death, the Living Trust allows the trustee to disburse the property and assets contained in the trust as if the deceased were still alive.

Q: Will Probate Address Creditors Against the Estate?

A: The probate process entails official notification of any and all creditors against an estate. If any creditor has a legal claim to some of the deceased’s assets, the probate process will analyze existing agreements between the deceased and the creditor and approve or deny claims accordingly. If a creditor does not receive due payment on the deceased’s debt through probate, they have the right to file a lawsuit against the estate for payment.

If you are expecting to participate in any probate proceedings in the near future or have questions about making your own personal arrangements, it’s a good idea to consult with an experienced Palm Desert probate attorney as soon as possible for more detailed insights into your situation.