Would It Be Possible to Handle a Probate Without a Lawyer?

Theoretically it could be done, but it is very difficult and not recommended. I have had to pick up some probate cases that were started by laypeople who unfortunately just wasted a lot of time because if something does not get filed properly or done properly, then it just sets the process back months and months. So, although theoretically, any kind of legal matter can be done without a lawyer, it would not be the smartest thing to do.

Should Costs Be the Deciding Factor When Choosing an Attorney?

The charges would actually be the same for any attorney because probate fees are essentially set by the statute. A person should instead look for an attorney who makes probate cases a fairly routine aspect of his or her practice. I happen to be certified by the State Bar of California as a specialist in estate planning trust and probate law, which means I have demonstrated to the state bar that I have the required amount of experience and education in these types of cases.

I would recommend that potential clients look for a certified specialist, which is one way to guarantee that the lawyer who they hire knows about probates. Other than that, referrals always are good thing to do, so if someone knew someone who had gone through a probate procedure, they could ask them how the lawyer was. In the end though, it all boils down to whether the person feels comfortable with that lawyer and whether they think that lawyer is a good person for the job.

What Are Some Common Misconceptions About The Probate Process?

The most common misconception about probate is that if the person has a will, their estate would not have to go through probate. Having a will is a direct ticket right into probate court, so that is a big misconception. The other common misconception is that people think probate is a way for the state to grab a portion of the estate. California does not get anything out of it, other than clogging up the court system a little bit more.

Other than that, most people are aware that a probate will take a long time, it will be expensive and it will all be a public court record, so there is not a lot of privacy for the family. People are aware of those issues, but the main misconception is that if the person has a will, then their estate will not go through probate whereas that is just completely incorrect.

What Are Some Barriers That Someone May Face During This Whole Process?

The whole probate is a big barrier because it is a court proceeding. Things become expensive and time consuming when they get thrown into court, so in general the entire probate process is a barrier to the ultimate inheriting of the estate. A lot of times, real estate is encumbered and if there was a loan or a reverse mortgage, then it would have to be negotiated with the lender.

One of the impediments to a simple administration is the credit worthiness of the personal representative, because they have to post a bond for the protection of the estate. It would be very difficult for the personal representative to get a bond if they have bad credit, and they might not be able to get it at all, so someone else might need to be found who could act as the personal representative.

It is difficult to get someone appointed as the personal representative if that person lived out of state or out of the country, so it would be much better if the person who was petitioning to be appointed was a resident of the state and preferably a resident of the county where the probate case was being handled.

How are Estate Creditors handled?

First of all, if the personal administrator knows who the creditors are, then they will have to send out a notice to the creditors informing them that the person has passed away and they are now the court-appointed personal representative. They would also be informed that they must file a claim with the court within 4 months after receiving the notice, so if the creditor does not file that claim, then they would not get paid.

The one and only advantage of probate is that there is a very short statutory period for the creditors to send in their claims. Once a claim is filed, the personal representative can examine it and either say it is not right and refuse to pay, or they can negotiate with the creditor. The administrator would be able to negotiate debts and creditors are usually willing to negotiate if the estate does not have enough money to pay off the full debt.

If the creditor was a bank because of a mortgage on the real estate, then they would try to negotiate a forbearance of the foreclosure on the loan if they cannot make the payments. They will usually agree to do that too, but ultimately, the real estate will have to either be sold to pay the bank during the probate or they will have to renegotiate the loan or refinance it, which is all somewhat difficult in probate which is why usually the property is sold off to satisfy the creditors.

How Are Taxes Handled In a Probate?

The personal representative will be responsible for filing taxes, state and federal, and also for paying them. They will have to pay income tax on any income that the estate earns during the probate administration. It is pretty straightforward because the estate will obtain an Employer ID number (EIN) from the IRS, and then use that number when filing taxes – any income would be reported under that EIN. Property taxes for real estate would also have to be paid by the estate during the probate.

For more information on Common Probate Misconceptions, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (949) 660-0007 today.

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