Trustworthy Representation for Your Trusts & Estates Matters
Grief, greed and a desire to rectify perceived family discourse seem to be the central themes of most cases involving disputes among siblings. This becomes especially acute when one or more siblings are nominated to serve as fiduciaries. For many others, old age and incapacity eventually dictate that an elderly parent will not be able to successfully manage the financial affairs of a complicated trust that was created in better times. We listen carefully to your circumstances, explain your legal options and help you make smart choices.
At Van Dyke & Associates, APLC, in San Diego, our attorneys focus exclusively on trust and estate litigation. With over two decades of experience, we are uniquely qualified to litigate petitions in probate court to efficiently and promptly resolve these complex legal problems throughout California.
Experts in Probate Matters - Fighting for your Rightful Inheritance™
If you have recently lost a loved one, you’ve no doubt heard the word probate in relation to your loved one’s estate. Probate requires a responsible person to shepherd the estate through a detailed settlement process under court supervision. If you are that person, a knowledgeable probate lawyer can help you handle the critical tasks. At Van Dyke & Associates, APLC in San Diego, our California attorneys have extensive experience advising clients who have been named as estate executors and administrators. We also frequently assume those duties ourselves. Sound guidance is essential because an estate representative could be personally liable for losses the estate incurs due to their errors or misconduct. We not only help you avoid costly rookie mistakes; we guide you through the complex process quickly and efficiently, so you maximize the value of the estate for your loved one’s heirs.
Common Probate Issues:
Beneficiary Rights —
Don’t let executors and trustees exceed their authority in managing the generational wealth of your family. We'll fight for your rightful inheritance.
Claims Against Trust Property —
You can count on us for sound guidance in matters related to Probate Code 850/859 Petitions.
Trustee Assignment & Support —
Often Trustees are appointed with no prior legal experience. The responsibility can be daunting and if not handled properly could result in breach of fiduciary duty and legal repercussions.
Fiduciary Disputes —
In cases of contested accountings, our firm drafts cogent reports. Where appropriate, we litigate allegations of deficient fiduciary performance by the trustee.
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.