You may have heard that probate in California is pretty much straightforward. Perhaps a bit complex, document heavy, and you would need to pay attention to the details, but not impossible to figure out.
To a certain extent, this may be true. It takes a skilled and conscientious personal representative to be able to navigate all the ins and outs of a probate process. Yet even then, one also needs familiarity with the various rules of procedure, statutory and court deadlines, mandatory forms and requirements, on top of defending will contests and disputes, managing creditor claims, and ensuring the proper management and administration of the estate assets.
If the personal representative effectively navigates all these potential obstacles and risks, certainly maybe you won’t need a probate attorney. But the learning curve is a bit steep. All the while, the personal representative could be exposing themselves to potential personal risk and liability.
So don’t be fooled – while the answer to whether or not you should hire a probate attorney is certainly a personal one, and a person is certainly free to embark on their responsibilities pro per (without counsel), doing so is not generally recommended.
It is one of the reasons that the fees for a probate attorney are considered reasonable administrative costs for an estate. To avoid potential problems, minimize personal risks and risks to the estate assets, and to close probate as quickly and as efficiently as possible, we highly recommend seeking the services of a probate attorney you trust.
The Myth of the “Simple Probate”
California probate requires familiarity with both the California Probate Code and local court rules and procedures. Even if you are generally familiar with the laws of testate and intestate succession, or property division – which in itself can be quite murky, you would still need to ensure compliance with the applicable rules and procedures. Even form practice can be difficult if you fail to meet the formatting errors, use the incorrect forms, or fail to provide required information or supporting documentation.
Even some lawyers with experience under their belts can experience rejected forms for technical mistakes or errors. Such delays can be costly. If you miss a deadline, or fail to submit required information, or neglect to avail of certain legal avenues that would have been advantageous to you – you may end up unintentionally waiving legal rights and remedies available to you.
Even worse, as a personal representative acting in a fiduciary capacity, you may find that you have exposed yourself to personal liability. If you fail to take immediate action to preserve assets in danger of loss or depreciation, that loss or depreciation suffered by the estate might be chargeable to you personally. This liability of the personal representative is referred to as surcharge.
The standard of care for a personal representative is that of ordinary care and diligence, which sounds simple enough. What would a reasonable person do under the same circumstances? But if the stakes involve missing out on advantageous tax elections or mismanagement of volatile assets, either of which might lead to significant financial damage to the estate, it would not be considered simple enough for the person liable.
For complex estates, especially, a personal representative with no familiarity with probate law, legal procedures, or property management, it seems logical that the standard of a reasonable person exercising ordinary care or diligence, under the same circumstances, would call for seeking the assistance of an experienced professional.
Objective Professionalism
So what does the probate attorney bring to the mix?
Experience in navigating the rules and procedures of probate courts, for one. If they were effective, they would have a system in place for tracking statutory and court deadlines, have the forms and pleadings ready to hand or ready to complete for filing.
They would also have an established network – court personnel they can reach out to if they have any questions or clarifications; real estate persons they can ask for assistance in investigating the status of estate assets; and professionals that can prepare financial or accounting records of estate funds and how they have been spent during probate management.
The effective probate attorney brings professionalism to even the most complicated matters, so that when a complex matter is broken down to its parts, one can see that it is essentially doable.
More importantly, the effective probate attorney is objective. He or she is not a beneficiary of the estate, not a member of the family, nor involved with any of the estate creditors. He or she can objectively assets competing claims and make a decision on what is best for the estate, or the best avenues to follow to ensure that the intentions of the testator are followed as much as possible.
At a glance, the effective probate attorney will know whether an asset must go through probate or not, or whether a creditor claim is spurious or not. If closer investigation is needed to determine these things, they will know what records or documents to look for and what questions to ask.
Should additional court intervention be required for one reason or another, to preserve a specific property, for instance, they would know what legal remedy to use. If accounts don’t seem to add up, or if property valuation seems unreliable, they will know what actions to take to raise the appropriate questions and get the appropriate remedies.
Communication Skills
The effective probate attorney will also serve as a guide for the personal representative, and must be able to explain complex legal concepts in a way that is easily understandable. If there are conflicting claimants, either beneficiaries or creditors, they will establish lines of communication with the parties and help neutralize heated arguments in favor of court-managed disputes.
The Pressure-Tested Advocate
Most importantly, the effective probate attorney will be able to deliver his services with the calm of someone who is familiar with the legal terrain.
Most people will feel the stress and anxiety of having to go through a court proceeding, which is understandable given the stakes – potential personal liability being one of them. A probate attorney who can deliver all of these services, and keep their heads throughout, will be an asset to the estate and the personal representative, rather than an unnecessary cost.
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Going through probate is not simply filling up forms and filing them in court. It is a full process of marshaling and consolidating property, managing assets, managing competing claims to the assets, reporting to the probate court, and keeping a careful record throughout.
Selecting the correct probate attorney to assist you is not just an expense, it is a risk management avenue towards efficient probate administration.