Resolving probate related civil disputes
When legal disputes disrupt your business or personal life, having a committed, knowledgeable attorney to zealously advocate on your behalf can bring comfort and peace of mind. Van Dyke & Associates, APLC represents California businesses, families and individuals in litigation, arbitration and mediation. Drawing on more than 20 years of experience, we can help you with all types of general civil litigation in state and federal courts. Although most legal disputes settle out of court, we have the skill and experience to go to trial when necessary and fight to uphold your rights.
Put a strong, determined civil litigator to work for you.
We know your time is valuable. That is why we stress efficiency throughout the process of resolving your disputes. We offer our clients:
Individual attention — When you retain our firm, you receive the care, time, and attention you deserve.
A more cost-efficient model — We constantly seek ways to cut your costs while maintaining the high level of legal services you expect and deserve.
Integrity — Our trial attorneys provide you with straightforward, honest answers to all of your questions and ensure you fully understand the litigation process and what to expect as your case moves forward. Our clients rely on us to help them set realistic expectations.
A focus on success — We always have your best interest in mind. If protracted litigation is the only solution to achieve the proper outcome, we are ready. If settling your case early on will achieve the best result, we will take the time to explain why we believe it is in your best interest to settle instead of engaging in lengthy litigation.
Our attorneys have the determination, tenacity, and skill required to successfully litigate your case when litigation provides the best means of resolving your legal issues. Our professional courtroom demeanor and meticulous preparation give us an edge as an assertive, strategic advocate.
Common Probate Related Issues:
Breach of Contracts
Glossary of Essential Terms
An estate is a naturally occurring entity, created when a person dies. At that time, with certain exceptions, assets that the person owns go into the estate. Assets placed in a trust, joint accounts, life insurance proceeds and some other types of property are excluded. The estate is not meant to be permanent; it merely serves during the period of transition, as ownership of assets passes to creditors and heir during the probate process.
The person who administers a person's estate upon their death. The primary duty is to carry out the wishes of the deceased person based on instructions spelled out in their will or trust documents, ensuring that assets are distributed to the intended beneficiaries.
Probate is the entire process of administering a dead person's estate. This involves organizing their money, assets and possessions and distributing them as inheritance – after paying any taxes and debts. Probate can also refer to the court process of validating a will so an executor can implement the decedent’s wishes, or the oversight the court provides for an estate administrator who settles the estate of someone who died with no valid will. How the wealth is transferred during the probate process depends on instructions in the decedent’s will. If no valid will exists, wealth passes according to the state’s laws of intestacy.
When do I need a Probate Attorney?
Many executors have never settled an estate. Some are surprised to learn the decedent's will named them as the responsible party. In most cases, the party responsible for settling the estate has no prior experience with probate tasks that include:
Filing the will with the California probate court
Obtaining court approval to act estate representative and posting bond
Developing the best strategy for fairly and expeditiously settling the estate
Finding and assembling assets
Paying creditors and claimants
Collecting amounts owed the estate
Closing and opening bank accounts
Transferring assets from the deceased to the estate
Paying current and delinquent taxes as well as estate taxes
Valuing, managing, preserving and distributing estate assets
Hiring experts, when appropriate.
What happens when someone dies without a will?
When the decedent did not leave a will, or a will is ruled invalid, the estate is said to be “intestate.” In these situations, the court will appoint a capable person who was close to the decedent to act as personal representative for the estate. The tasks of settling the estate are basically the same, but property passes to the decedent’s heirs according to the state’s laws of inheritance, which create a priority system. The estate administrator must identify and locate eligible persons, which might be tricky if the decedent didn’t have a spouse or children. If there are no relatives, the property goes to the state in what is known as “escheatment.”
How do you value assets within an estate?
Our attorneys assist executors with the arduous process of collecting, valuing, protecting and liquidating the assets of the estate. We can also advise on the dispersal of assets placed in trusts, as well as property that is transferred outside the probate process. When appropriate, we call upon accountants, financial advisers, real estate agents, property managers and other professionals to assist with executor duties. Our firm can also obtain expert opinions about unique assets such as antiques, rare books, automobiles, fine art and other collectibles for accurate valuation, management and possible sale.
What is the difference between formal and informal probate?
In California, there are two main methods of settling an estate, referred to as formal and informal probate. The formal process goes through the Probate Court, which generally makes it more time-consuming and expensive. Under the formal system, an estate representative, known as an executor or administrator, must follow required steps under the supervision of a judge. These steps include:
Producing a death certificate
Receiving a formal appointment as administrator
Creating an inventory of estate assets and debt
Paying the decedent’s outstanding bills and closing their accounts
Distributing property to beneficiaries
Finally, the administrator closes probate and relinquishes responsibility for the estate.
The informal process is streamlined, does not involve a judge and goes much more quickly, but it is only available for estates where the total value falls below a certain threshold and no real estate is being transferred. California requires formal probate for all estates valued at $162,250 and up. Estates with lower valuations can settle via a small estate process that does not require formal probate.
Why is Avoiding Probate Crucial?
There are many potential downsides of the formal probate process, including:
Delays in receiving property — If beneficiaries are dependent on the assets they anticipate receiving, waiting for months, or even more than a year, might be stressful and inflict unnecessary financial hardship.
Expense — Estate assets are used to pay legal fees, a stipend to the executor, appraisal costs on property and court expenses. This means less wealth transferred to beneficiaries.
Lack of privacy — The probate process creates a public record of the value of estate assets, intended beneficiaries and any conditions associated with the inheritance.
Loss of control — A judge’s rulings can be adverse to the decedent’s intentions and the beneficiaries’ interest.
For these reasons and more, many individuals and families seek to avoid shifting property ownership through probate..
How do I Avoid Probate in California?
There are a variety of strategies that enable testators to avoid probate so their assets pass directly to their intended beneficiaries. These include:
Naming beneficiaries — Retirement plans, insurance policies and bank accounts allow owners to designate a beneficiary to receive assets upon the owner’s death.
Right of survivorship — Certain legal relationships provide for co-ownership. If, for example, two persons own a home as joint tenants, full ownership of the home passes to the surviving owner.
Transfer on death deed — A property deed can contain instructions to transfer ownership to a new owner.
Trusts — Individuals can use one or more trusts to hold property, which upon their passing is transferred to trust beneficiaries.
Although we recommend taking prudent steps to protect your wealth, our firm does not perform estate planning. We focus exclusively on probate and trust litigation. Thus, if anything goes wrong with the processes we’ve explained on this page, we are ready to help you assert your rights and seek a favorable resolution.