Probate is the legal process which occurs after a person dies. Its purpose is to prove in court the validity of a deceased person’s Will. It also serves to inventory the deceased’s property and pocessions, have property appraised, pay debts and taxes, and to distribute the remaining property to beneficiaries as the Will instructs.
Assuming the deceased’s Will is up to date and properly drafted, the probate process should be fairly quick and painless. If there isn’t a Will however, or if the Will is somehow insufficient, then the process can become long and stressful.
If you do find yourself as a beneficiary to an unprotected estate, void of a Will, or where the Will is contested, rest assured that you are not without options. Most estate planning attorneys also handle probate proceedings.
Regrettably, people often choose to face their own mortality without the benefit of a Will. There are many reasons for this, but the biggest may be the worry over the expense involved. It isn’t hard to imagine that our heirs are equally concerned about consulting attorneys for the same reason.
Not long ago, we met with a client whose mom had passed, leaving her as the sole heir to mom’s estate. Mom did not have a Will, but she did have a valuable home which she intended her daughter to inherit. Being the sole heir, the daughter decided to represent herself in probate court. She showed up to court as instructed, filled out the necessary paper work, and followed procedure. What resulted were rejection notices and requests for resubmissions. The process left her fed up and frustrated.
She came to see us nine months later. During her consultation, she made it clear that money was an issue. She expressed concern and worry while sharing information in our conference room. She knew that she needed help from an expert but she didn’t think she could afford it.
What the client didn’t know, and what most people don’t know, is that good estate planning/probate attorneys are paid from the estate property. In our case, the attorney’s fees were paid from the proceeds after the house sold.
People don’t always understand that probate is just a legal process. It can be excruciating or it can be relatively painless. It all depends on how the person prepares. A properly drafted estate plan, including a Will and Trust is always the best path. Nevertheless, if a beneficiary doesn’t have the benefit of these documents, they still have an alternative path in hiring a probate attorney. The probate attorney can handle paper work, the appraisal process, follow up, and other various duties, all without billing a penny until the probate is final.

A Will is a terrific device whose purpose is to protect the wishes and property of an individual, long after an individual can no longer do so for them self. That said, not all Wills are created equally. Most people living in California are unaware that there are three kinds of Wills that our state recognizes: Holographic Wills, Statutory Wills, and Attorney Drafted Wills. This article will describe in detail these three types of Wills.

The Holographic Will is rarely used except in cases of emergency, due to the ease in which it can be contested. A Holographic Will does not have to be notarized or witnessed. The Will must be entirely in the author’s handwriting. The document must be legibly handwritten. In addition, if the author types anything into the Holographic Will, it may cancel the entire Will. The intention of the Will must be clear. There can be no question of what the author is leaving and who will receive it. In two words, this kind of Will is “high maintenance”. But, if you find yourself in dire circumstance with no time to spare, and no attorney to consult, it could arguably be better than not having a Will at all.

Statutory Wills are prewritten Wills created by the state legislature, and written into state law; meaning that you have to use the Will exactly as they are drafted and without amendment. If you are a state resident, you may use this Will at no cost by simply filling in the form. As a rule, their inflexibility, and inability to change the language or add clauses makes them a secondary choice. Yet, if you need a very simple, straightforward Will, then a Statutory Will might suit you.

The Will that most people are familiar with, is a will drafted by an Estate Planning Attorney. A “drafted” Will is created to suit individual needs. A properly drafted Will meets California legal standards while allowing for the addition of provisions to fit individual needs. For example, if a person wants to exclude a family member from receiving benefits, name a guardian to raise children in the event of death, establish and fund a Trust for surviving family, choose between burial and cremation, or name their own Executor as opposed to having one appointed by the state, they can. The freedom provided by this kind of Will makes it easy to see why “drafted” Wills are the most popular.

Whether it is drafted or prewritten, make certain you choose a Will that is right for you. When planning a Will, consult with an Estate Planning Attorney. An Estate Planning Attorney will be able to answer any questions and ensure the Will meets your goals. In addition, most attorneys provide a free consultation. A good attorney will use that time to bestow their knowledge and explain all options with clarity.