Frequently Asked Probate Questions
Answers from an Orange County Probate Attorney
Below are some questions we are frequently asked about
probate. The answers are intended as general information and not legal advice.
If you have additional questions, you are encouraged to contact our Orange
County probate lawyers.
What is probate?
When a person dies leaving a will, a court procedure exists to ensure that
the writer's intentions are carried out in accordance with the law.
There are safeguards to ensure that creditors' claims are paid, that
asset protection exists, and that grievances of heirs and creditors are fairly dealt with.
If the deceased did not have a will in place at the time of their death,
however, the assets of their estate will be distributed how the court
sees fit. For this reason, it is important for everyone to take the proper
steps to plan for the future of their estate.
Can probate be avoided?
Yes. In estate planning, a person may establish
living trusts so that at the time of their death, their property bypasses the need for
probate. By doing this, a person may be able to appoint a trustee, who,
at the time of their passing or incapacitation, will leave the responsibility
of their estate to the person that was appointed—per the instructions
that were outlined in the trust. Estates of under $100,000 may avoid formal
probate procedures, as well, but there are also several other ways in
which an experienced attorney may be able to help a client avoid probate.
What is the advantage of probate avoidance?
Probate ties up the assets of the decedent while the probate process plays
out. It also entails effort and expense in complying with probate court
requirements and procedures. By planning ahead in an effort to
avoid probate proceedings, one's assets may be distributed as intended. Although
certain types of property is often excluded from the process, including
life insurance, real estate accounts, bank accounts, and/or retirement
plans, creating a living trust may be the easiest way to avoid any future
When does probate litigation occur?
It often involves a will contest. An heir may charge that the will has
been forged or challenge the validity of the will on grounds that the
writer of the will was of unsound mind or under undue influence. Vagueness
and omissions in
wills may also result in disputes, along with questions about an asset's
value, the operations of a business that was owned by the deceased, and/or
tax issues. There can also be litigation over creditor claims. For a variety
of reasons, probate litigation may be necessary, so it is advisable to
speak to an attorney when dealing with these complicated matters.
Who is the executor?
The executor is the person who administers the decedent's estate in
accordance with the will. Usually the executor is designated in the will
but the court may approve someone else. It is the executor's job to
present the will for the court's approval. The executor collects up
the assets of the decedent and prepares an inventory for the court. The
executor pays the decedent's bills and prepares income and estate
tax returns. The executor may sell the decedent's assets as needed
to pay the estate's bills or facilitate
distribution of assets. Finally the executor prepares a proposed distribution of assets for the
Do you have further questions about probate?
If you have further questions about any matters regarding probate, you
should not hesitate to contact our firm for more information. At P. Arnsen
Orange County estate planning attorney is well-versed in all areas of the law that you may now be struggling
to navigate. Because of this, we offer a
free case evaluation to all of our clients in an effort to help anyone that is in need of knowledgeable
legal assistance. If you still have questions that have been left unanswered,
whether about probate, trusts, wills, or any other area of estate planning,
contact our firm today.