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ORANGE COUNTY

PROBATE ATTORNEY - LAWYER
Trusts, Wills, Probate and Estate Planning
..

Free Initial Consultation - House Calls Upon Request
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9070 Irvine Center Drive, Suite 100, Irvine, CA 92618
Specializing in Probate, Trust Funding and Administration, Wills, Appointment of Guardianship for Children, Special Needs Planning, Incapacitation Planning, Advanced Health Care Directives, Business Succession Planning and More
"There is comfort in taking care of your loved ones"
Call Us Today! (949)916-6020
 
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ESTATE PLANNING ORANGE COUNTY, ORANGE COUNTY ESTATE PLANNING ATTORNEY, IRVINE ESTATE PLANNING,TRUST LITIGATION ATTORNEY, PROBATE LITIGATION ATTORNEY, Laguna Woods Estate Planning, Liesure World, Wills, Probate Lawyer, AB Trusts, ABC Trusts, Trust Funding, Life Insurance Trusts, Business Succession, Gifting, Elderly Care, Hospice, Home Care, Nursing Home, Advanced Health Care Directive, Probate, Living Trust, Conseritorship, Adult Day Care, Assisted Living, Long Term Care, Retirement Planning, Business and Tax Planning, Special Needs Trusts, Life Insurance Trusts, Retirement Trusts, Simple Trusts, Charitable Gifts, Generation Skipping Planning, Marital Agreements, International Estate Planning, Elder Law, Conservatorships, Guardianships, Real Estate Inheritance, Aliso Viejo, Costa Mesa, Dana Point, Huntington Beach, Irvine, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest, Mission Viejo, Newport Beach, Orange, Placentia, Rancho Santa Margarita, San Clemente, San Juan Capistrano, Seal Beach, Tustin, Villa Park, Coto de Caza, Ladera Ranch


ARTICLE 1:


WHAT IS PROBATE IN CALIFORNIA?

 

California Probate

Probate is the legal process of transferring a decedent's estate to the rightful heirs of the estate. The probate process involves (1) collecting and identifying the deceased person's property, (2) paying any debts and taxes, and (3) identifying the proper heirs and distributing the estate property to them. While the court oversees this process, in most cases the work is done by the executor or the administrator of the decedent's estate with the help of an attorney.

If a person is named as the executor of the estate in the decedent's will, a court hearing to establish the validity of the will must be held before he or she can legally act on behalf of the estate. If there is no will and a person wants to act as the administrator of the estate, he or she must apply to the court and be confirmed before taking any action in connection with the estate. Anyone taking actions involving the estate before formal appointment by the court may be personally liable for those acts.

Generally, the rules regarding probate are found in the California Probate Code, the local rules for each superior court in the State of California and various tax codes and regulations. Each task in the probate process must be performed in accordance with the requirements of California law and the various tax rules.

Property Not Subject to California Probate

In many cases, the decedent's estate consists of at least some property that is not subject to probate. Life insurance, for example, usually passes directly to the named beneficiary without court confirmation. Property held in joint tenancy may also pass directly to the surviving joint tenant. Similarly, if the deceased person had created a "living trust," assets held in the trust are usually not subject to probate. A bank account may also designate a death beneficiary. (These examples assume that there is no dispute over the named beneficiary or the manner in which title is held. If there is a dispute and a civil action is filed by an individual, the court will determine the rightful owner of the property.)

Summary Proceedings

In certain circumstances, some or all of the decedent's property may qualify for a "summary probate" or "set-aside proceeding." These procedures are less complicated alternatives to a formal probate.

For example, if all of the decedent's property goes to the surviving spouse, a summary probate proceeding can be used where a "spousal property petition" is filed with the court seeking court confirmation that the surviving spouse owns the property. This proceeding can take as little as 30 days. In other cases, if the total value of a deceased person's property otherwise subject to probate is less than $100,000, an affidavit procedure may be used to transfer personal property, and the transfer of real property can be confirmed through a relatively simple proceeding.

While these procedures avoid the court proceedings of a full probate, this does not mean that the estate will avoid federal estate tax, income tax, or inheritance taxes. And, even if these methods are used, the decedent's debts must still be paid. Finally, even if a summary proceeding is available, there may be important reasons for deciding to proceed with a formal probate instead of electing a summary proceeding or a set-aside proceeding. (See Benefits of Probate below.) In all cases, you should consult with an attorney before you take any steps to transfer a decedent's property without a court proceeding.

If There is No Will in California

In many instances, a person dies without leaving a will. When this occurs, the decedent is said to have died "intestate" and the heirs to the estate are determined by California's laws of intestacy. The laws of intestate succession determine how the estate will be divided based on a person's relationship to the decedent, e.g., surviving spouse, children, other descendants, etc. Probate will still be required unless specific property of the estate is not subject to probate, such as life insurance, etc., or a summary procedure is available. If the deceased person did not leave a will and a formal probate is required because of the nature and size of the assets, the court will appoint an administrator to handle the probate proceeding. In most cases, the court will appoint the decedent's closest relative to act as the administrator.

Benefits of California Probate

Despite the negative image of probate, probate proceedings do provide some important benefits. There are some situations where, although formal probate is not required, it may nevertheless be advisable to elect to proceed with probate. In many cases, there are tax advantages to receiving property through probate as opposed to being received by way of joint tenancy or a gift made prior to death. Property obtained through probate almost always receives a "step-up" in the tax basis to the date of death value. This often results in a substantial capital gains tax savings on the sale of the property. Further, if there are creditors' claims against the estate, it may be beneficial to have probate court supervision so that the validity and amount of the claims can be determined. Probate also bars creditor's claims if they are not asserted during the "creditor's claims period" (generally four months after the executor or administrator is appointed). In addition, probate provides court supervision which ensures that the decedent's property will be accounted for and distributed in accordance with the decedent's intent. Court supervision can also be helpful when the family members or the beneficiaries have difficulty getting along.

Further, the "delays" associated with probate are generally not a significant problem. Family members usually have prompt access to joint back accounts and insurance proceeds. And, where special needs exist, the probate court will allow for preliminary distributions or a family allowance. Formal probate usually only takes six months to a year to complete.

In sum, even where probate is not required, you should consult with an attorney to consider these and other factors in deciding how best to proceed in handling the estate.

Our firm's practice is to charge a reasonable hourly rate for the hours that we spend on the case which, in most cases, is less than the statutory fee.

If you are interested in hiring our firm to handle a probate or trust matter in California.

Please call Tracy Murphy at (949)916-6020
to set up a FREE initial consultation.


Probate, Trusts, Wills, and Estate Planning Attorney

Servicing Orange County, Irvine, Laguna Woods, Leisure World, Seal Beach, Laguna Beach, Laguna Hills, Lake Forest, Mission Viejo, Laguna Niguel, Aliso Viejo, Coto De Caza, San Clemente, Newport Beach, Huntington Beach

 
     
"There is comfort in taking care of your loved ones"
Call Us Today! (949)916-6020
 


ORANGE COUNTY
PROBATE ATTORNEY - PROBATE LAWYER
Trusts, Wills, Probate and Estate Planning
..

Free Initial Consultation - House Calls Upon Request

PROBATE ORANGE COUNTY, IRVINE PROBATE, LAGUNA WOODS PROBATE, LEISURE WORLD PROBATE


ESTATE PLANNING ORANGE COUNTY, ORANGE COUNTY ESTATE PLANNING ATTORNEY, IRVINE ESTATE PLANNING,TRUST LITIGATION ATTORNEY, PROBATE LITIGATION ATTORNEY, Laguna Woods Estate Planning, Liesure World, Wills, Probate Lawyer, AB Trusts, ABC Trusts, Trust Funding, Life Insurance Trusts, Business Succession, Gifting, Elderly Care, Hospice, Home Care, Nursing Home, Advanced Health Care Directive, Probate, Living Trust, Conseritorship, Adult Day Care, Assisted Living, Long Term Care, Retirement Planning, Business and Tax Planning, Special Needs Trusts, Life Insurance Trusts, Retirement Trusts, Simple Trusts, Charitable Gifts, Generation Skipping Planning, Marital Agreements, International Estate Planning, Elder Law, Conservatorships, Guardianships, Real Estate Inheritance, Aliso Viejo, Costa Mesa, Dana Point, Huntington Beach, Irvine, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest, Mission Viejo, Newport Beach, Orange, Placentia, Rancho Santa Margarita, San Clemente, San Juan Capistrano, Seal Beach, Tustin, Villa Park, Coto de Caza, Ladera Ranch

Disclaimer: The information and notices contained on this website are intended as general research and information and are expressly not intended, and should not be regarded, as financial or legal advice. We attempt to ensure that the material contained on the website is accurate and complete at the date first published, however you should recognize that information contained on this website may become out of date over time. Readers who have a particular question about estate planning, business succession, tax planning, probate, living trusts, probate litigation, trust litigation or who believe they require legal counsel, should seek the advise of an attorney


Tracy Murphy Attorney At Law, 9070 Irvine Center Drive, Suite 100, Irvine, CA 92618
Tel: (949)916-6020, Fax: (949)861-6520

"For Driving Directions Click Here"


Specializing in Trusts, Trust Funding and Administration, Wills, Appointment of Guardianship for Children, Special Needs Planning, Incapacitation Planning, Advanced Health Care Directives, Business Succession Planning and More

OUR CUSTOMERS COME FROM THE FOLLOWING CITIES FOR TRUSTS, WILLS, AND FINANCIAL PLANNING:

Aliso Viejo, 92653, 92656, 92698, Anaheim, 92801, 92802, 92803, 92804, 92805, 92806, 92807, 92808, 92809, 92812, 92814, 92815, 92816, 92817, 92825, 92850, 92899, Brea, 92821, 92822, 92823, Buena Park, 90620, 90621, 90622, 90623, 90624, Costa Mesa, 92626, 92627, 92628, Cypress, 90630, Dana Point, 92624, 92629, Fountain Valley, 92708, 92728, Fullerton, 92831, 92832, 92833, 92834, 92835, 92836, 92837, 92838, Garden Grove, 92840, 92841, 92842, 92843, 92844, 92845, 92846, Huntington Beach, 92605, 92615, 92646, 92647, 92648, 92649, Irvine, 92602, 92603, 92604, 92606, 92612, 92614, 92616, 92618, 92619, 92620, 92623, 92650, 92697, 92709, 92710, La Habra, 90631, 90632, 90633, La Palma, 90623, Laguna Beach, 92607, 92637, 92651, 92652, 92653, 92654, 92656, 92677, 92698, Laguna Hills, 92637, 92653, 92654, 92656, Laguna Niguel, 92607, 92677, Laguna Woods, 92653, 92654, Lake Forest, 92609, 92630, 92610, Los Alamitos, 90720, 90721, Mission Viejo, 92675, 92690, 92691, 92692, 92694, Newport Beach, 92657, 92658, 92659, 92660, 92661, 92662, 92663, Orange, 92856, 92857, 92859, 92861, 92862, 92863, 92864, 92865, 92866, 92867, 92868, 92869, Placentia, 92870, 92871, Rancho Santa Margarita, 92688, 92679, San Clemente, 92672, 92673, 92674, San Juan Capistrano, 92675, 92690, 92691, 92692, 92693, 92694, Santa Ana, 92701, 92702, 92703, 92704, 92705, 92706, 92707, 92708, 92711, 92712, 92725, 92728, 92735, 92799, Seal Beach, 90740, Stanton, 90680, Tustin, 92780, 92781, 92782, Villa Park, 92861, 92867, Westminster, 92683, 92684, 92685, Yorba Linda, 92885, 92886, 92887, Coto de Caza, El Modena, Ladera Ranch, Las Flores, Midway City, Orange Park Acres, Rossmoor, Silverado Canyon, Sunset Beach, Surfside, Trabuco Canyon, Tustin Foothills