As a San Jose area Probate Lawyer, EMSeid Estate Law can guide you through the required steps the court needs during the probate process.
The process of probate is for the will of a deceased person to be legally filed with the court to administer the estate. In some cases you may need the services of a San Jose area probate lawyer, and EMSeid Estate Law is well prepared to help you with every step. If you have been named executor of a will, or are a family member who wants to know how to navigate the probate rules, then we can be your legal counsel to ensure that all California laws are followed.
Why is Probate Required?
In the simplest terms, a probate is required when the owner of an asset who normally signs the document to transfer ownership of the asset has died and is no longer available to sign the title transfer document. The probate court appoints and authorizes another person to sign the transfer documents for the deceased person.
If the decedent has a will, the assets will be distributed according to the terms of the will and the executor nominated in the will is most likely appointed to administer the will. If the decedent left no will or means for transferring decedent’s assets, the decedent’s asset are distributed according to what the California statutes provide referred to as “intestate succession.”
Probate applies only to the distribution of assets listed in a will or assets for which another means of transfer at death is not indicated. There are several types of property that do not require probate including:
- Joint tenancy of real property where title automatically transfers to another
- Community property to a surviving spouse
- Revocable trusts, where title transfers outside of probate
- Certain types of accounts with payable on death features
- Estates with less than $150,000 in assets don’t need to be probated
However, for other assets that are simply listed for distribution to heir in a will or for assets for which transfer at death is not provided, probate is necessary to transfer the assets. In this way, the probate court oversees the transfer and where there is a will, confirms that the final wishes of the deceased are followed.
The Role of the Executor
If you have been named executor of a will, you will have a detailed and involved role in the probate process. At EMSeid Estate Law we can guide you through the required paperwork and document filing that the court needs, and we will ensure that you don’t overlook any essential steps. The role of the executor will include the following:
- Filing the will and Petition for Probate
- Validating the will with the court
- Apply for a tax identification number and bank accounts for the estate
- Create an inventory of all estate assets to be included in probate
- Obtain appraisals for property, and business valuations
- Pay taxes, bills, and review creditor claims
- Sell property such as real estate
- Maintain security and insurance for all property and valuables
- File tax returns for the estate
- Transfer the estate assets to the appropriate person.
The role of the executor is important and carries serious responsibility. We can assist you in all of these tasks and can obtain court approval where it may be required.. The entire probate process can take from six months to one year or more, so we will have an ongoing support role as issues arise.
If no executor is named in the will then the court may appoint a family member as ‘administrator’ of the estate who will fill the same functions.
EMSeid Estate Law: Your San Jose Area Probate Lawyer
Many executors or family members of a deceased relative are unsure whether an attorney is needed to go through probate. While it is not legally required, unless you have some understanding of the rules of probate court it may seem overwhelming without legal counsel. We can be your ally during this important time for your family, and ensure that all estate assets are distributed to heirs as intended.
If disputes or disagreements about the will or distribution arise, we can facilitate a solution on behalf of the estate. If you are uncertain about your new responsibility as executor, contact us for a brief consultation on our probate services. We are well versed in the California probate rules and have the experience to make the process of administering the estate as smooth as possible.