San Diego Probate Law Firm

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San Diego Probate Law

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Is Probate Needed?

If someone you loved passed away in California or has California Assets, you will need an experienced California Probate Attorney to guide you through the probate process.

At Opelon LLP our sole mission is to improve the lives of our clients by handling the complicated and stressful probate process.

This includes filing the probate petition and other probate court required documents and gathering the assets of the decedent to create an inventory. 

We work hard to get you and your family the inheritance you are entitled to.

See our  Probate FAQ’s

The Probate Process is Not Easy

Understanding Probate

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How Long Does A San Diego Probate Take To Complete??

In most counties in California, the minimum time to complete a formal Probate is approximately 8 months (i.e. 2 months to get a hearing date to have an Executor/Administrator appointed + 4 months for creditors to file a claim + 2 months to get a hearing to approve final distribution).

However, even a “simple” Probate (e.g. one with few assets, few (if any) controversies, few (if any) creditors, and little (if any) taxes owed), takes 10 months, but more often closer to 12 months and in some counties even longer due to few judges handling many probates.

For comparison, a more “complicated” Probate (e.g. where the Decedent had many assets / creditors / heirs/beneficiaries, unknown heirs/beneficiaries, was a defendant in a pending lawsuit, had significant taxes, etc.) could last years.

What is Probate?

Probate is the legal process that takes place after someone passes away with only a last will and testament in place. 

During the process, the last will and testatment is submitted to the probate court where a probate judge will appoint a fiduciary to handle the distribution of the decedent’s estate. 

Is there a difference between Probate and Administration?

Administration takes place after someone passes away with no last will and testament and no trust, or when the executor of the will is unwilling or unable to serve. 

Similar to probate, a probate judge will appoint a fiduciary to handle the distribution of the decedent’s estate based on California Probate Law. 

Can I Handle The Probate Process Myself? should I hire a Probate Attorney?

If the estate you are handling does not contain any probate assets, and does not carry any debt, then you may be able to get by without the assistance of a Probate attorney. The trouble is, you don’t know what you don’t know, and if an estate is mismanaged you may find yourself personally liable. 

Hiring an experienced San Diego Probate attorney will ensure that the proper filings are made with the court and the correct notices are given to all interested parties. Each court has their own unique local rules when it comes to carrying out these tasks.

A good place to start is by giving us a call for a free consultation or by taking our Probate Quiz to find out if the assets in question are subject to probate.

 

86

Average estate plans per year

25+

Years of combined attorney experience

58

California Counties Servced 

200+ million

In Assets Transfered

The San Diego Probate Process

“We Take Pride in helping good people Navigate Tough Situations”

-Attorney Matt Odgers

plan of action

wE kNOW EACH STEP OF THE pROBATE pROCESS

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01

Open Probate

To open probate you will file a petition for probate and publish notice. Once filed you will be given a hearing on the probate petition and then issued letters

4-6 weeks

02

Gather Assets, Give Notice

After probate is opened, you will need to prepare and file a list of the estate assets and give notice to any known creditors.

4-12 months

03

Obtain Court Approval, Distribute Assets

Once the final accounting is prepared and notice is sent to all interested parties, the court will need to approve the final accounting and issue an order to distribute assets. 

4-6 weeks

Let Us Guide You Through Probate.
All the way through.

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you are not alone

Our San diego Probate services Include:

Our Probate Attorneys are commited to giving each of our clients the best experience possible.

We will advise you on your options and take all of the legal stress out of your circumstance so that you can focus on your grief and family. 

Types of Estate Proceedings we Handle

San Diego Probate Attorney

T. Owen Rassman

Probate Attorney

T. Owen Rassman

Attorney T. Owen Rassman

Opelon LLP combines big firm qualifications with small-firm accessibility. With degrees in tax (LL.M.), law (J.D.) and business (M.B.A.), its Co-founding Attorney, T. Owen Rassman, is uniquely qualified to bridge the often overlapping areas of Probate Estate Planning and Trust Administration.  Owen has the experience and qualifications to counsel you from start to finish.

At Opelon LLP, our level of service extends far beyond our qualifications. Owen strives to build lasting relationships. At Opelon LLP, you will get to know your attorney and feel comfortable asking questions. That’s a promise! Estate planning is done on a flat fee basis, so questions are encouraged. Probate fees are set by the court, and we bill hourly for trust administration services. In all situations, the initial consultation is free. Our business model is built on providing quality service at reasonable rates. If our clients are happy, we are confident they will refer friends and family. It is as simple as that.

T. Owen Rassman is originally from Los Angeles, and still has close ties to the city, including family and his UCLA Bruins, but his heart lies in North County San Diego. When not reading up on changes to the tax code and counseling clients, Owen enjoys spending time with family, surfing in Cardiff and traveling.

More than I expected. And I can call him directly. You will not find that in most legal offices. Very professional and knowledgeable. I have found my estate attorney. Thank you, Owen.

Joseph T.,
Oceanside CA

Here Are Answers to Some Common Probate Questions

San Diego Probate FAQ’s

In most counties in California, the minimum time to complete a formal Probate is approximately 8 months (i.e. 2 months to get a hearing date to have an Executor/Administrator appointed + 4 months for creditors to file a claim + 2 months to get a hearing to approve final distribution). However, even a “simple” Probate (e.g. one with few assets, few (if any) controversies, few (if any) creditors, and little (if any) taxes owed), takes 10 months, but more often closer to 12 months and in some counties even longer due to few judges handling many probates. For comparison, a more “complicated” Probate (e.g. where the Decedent had many assets / creditors / heirs/beneficiaries, unknown heirs/beneficiaries, was a defendant in a pending lawsuit, had significant taxes, etc.) could last years.

In a typical Probate, the person who files the Petition for Probate (called the “Petitioner”) is also the person requesting appointment as the Personal Representative of the Estate (called an “Executor” or an “Administrator”). This person, the Petitioner / Executor / Administrator, is the person who typically hires the Probate attorney.

Barring exceptional circumstances, the State does not take property in a Probate.  That said, if the Decedent owed taxes to the California Franchise Tax Board (“FTB”) and/or the Internal Revenue Service (the “IRS”), and assets are distributed to beneficiaries in a Probate before taxes are paid, the FTB and IRS can come after the Executor / Administrator and potentially even the beneficiaries for payment of the tax debt.

Definition of Probate: In its most narrow sense, probate means to prove that the will was the decedent’s , and that the will being offered to the court is the “Last Will” of the decedent. In its broader sense, probate refers to the entire process of administering the decedent’s will, including gathering the decedent’s assets, paying the decedent’s taxes and debts, and distributing the remaining assets to the proper beneficiaries.

Read More: Handling the Probate Process

San Diego Probate Court

Benefit:

  • You are able to save money while you are alive by not having a trust drafted.

Downside:

  • Time: In San Diego there are currently 2 judges that review all of the probate cases and it is not uncommon for a probate case to last from 1-2 years.
  • Expense: While you do save money while you are alive, the cost of going through probate generally far outweighs the cost of setting up a living trust.
  • Public Records: Probate is a public process and your estate will lose the privilege of privacy.

Pursuant to the California Probate Code, the attorney representing the Executor / Administrator does not get paid for his/her services until the Court has ordered payment. Typically, this is at least 9 months after the Probate is started; and typically only after the Probate estate has cash available to pay the attorney.

California Death Tax: While tax laws change relatively frequently, there is currently no death tax imposed by the state of California. “For decedents that die on or after January 1, 2005, there is no longer a requirement to file a California Estate Tax Return.”

Federal Death Tax: In 2016, as an individual, if your gross estate is valued under $5,450,000, then you will not owe any estate taxes. If you are married then the $5,450,000 can be multiplied by 2 (for each spouse). This means that a married couple’s estate will not be taxed if it is under $10,900,000. IRS Website.

What is an Executor: When a person dies, the law in California requires that his/her property must be accounted for and collected. Once the debt’s, taxes, and expenses are paid, then the remaining assets are distributed to whomever is legally entitled to that property. That distribution is determined by the person’s will, or if there is no valid will (or to the extent a will is partially invalid), the intestate laws of California.

It is the Executor (or sometimes referred to as the administrator) responsibility to collect and safeguard the decedents assets, pay the death taxes, debts, and expenses of the decedent, and to make the appropriate distribution of any remaining assets.

Probate

The entire process by which these tasks are accomplished (wit the supervision and guidance of the court system) is called Probate.

Definition of Beneficiary: A beneficiary is the person who is legally entitled to receive the assets from a trust or a will. A beneficiary can be a person or an organization (such as a charity).

Probate is a Court process sometimes required to transfer title to the Decedent’s assets out of the Decedent’s name and in to the name of the Executor / Administrator, who then has legal authority to pay the Decedent’s debts and taxes and distribute what remains to the beneficiaries. If a Probate is required but never started, title to the Decedent’s assets may remain in the Decedent’s name, meaning his/her beneficiaries may not be able to inherit the Estate’s assets.

Pursuant to the California Probate Code, the Executor / Administrator is required to give notice of the Probate to “known and reasonably ascertainable creditors” of the Decedent.  Giving this notice starts a 4 month period for creditors to file a “Creditor’s Claim” with the Court. If no Creditor’s Claim is filed within such 4 month period, with a few exceptions, the creditor loses the right to file such a claim, meaning he/she/it loses the right to collect the debt.

The Probate attorney can only take a retainer in a Probate to cover his/her anticipated expenses; he/she cannot take a retainer to pay his/her legal fees. In a “simple” Probate, expenses usually range between $1,500 and $2,000 (e.g. filing fee for the Petition for Probate, publication fees, bond premium, filing fees for the Inventory and Appraisals, filing fees for the Petition for Distribution, etc.).  Of course, every Probate is different and expenses in a Probate could and often do exceed the above range.

If the house is going to be sold, the lender / bank will be paid off.  If the home is not going to be sold, but rather inherited, under federal law, the bank / lender must allow certain family members to take over a mortgage without having to qualify for the loan. In other situations (i.e. non-family members are the beneficiaries), the beneficiary may need to qualify for a loan to pay off the existing lender / bank.

Work with an experienced Probate attorney to make sure:  a) you timely file the Petition for Probate; b) that the Petition does not have defects, which would be cause for delays; c) all persons entitled to notice of the Petition receive such notice; d) known and reasonably ascertainable creditors are notified; e) assets are timely transferred from the Decedent to the Probate estate; f) taxes are timely filed; and g) the Final Petition for Distribution is timely file, without defects.

Typically, the Executor / Administrator does not need to appear in Court; rather, his/her attorney appears for him/her. However, every Probate is different and some may require testimony from the propped Executor / Administrator, depending on the circumstances.

You may be asking yourself…

Do I Need to Hire a Probate Lawyer?

Unfortunately like most legal questions, the answer is it depends…

If you answer No to any of the questions below, then it is a good idea to reach out to us for a free consult. 

Can the decedents assets be transfered outside of probate?
Does the estate qualify for a "summary" or "small probate" procedure?
Do all family members communicate well and get along?
Is there enough money in the estate to pay its debts?
Will the estate owe any state or federal estate taxes?
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