Do I Need a Probate Lawyer in San Jose, CA
Do I Need a Probate Lawyer in San Jose, CA
When the time comes to die, make sure that all you have to do is die!
- Jim Elliot
Probate is the process that occurs after an individual passes away. It involves distributing assets and taking care of any debts. This process happens regardless of whether or not there is a
Last Will and Testament.
A probate lawyer is an estate or a trust lawyer that can help manage the filing of the last testament or will of a deceased individual. Probate attorneys can also help create a
Last Will and Testament and can assist with trust planning (including
Living Trusts) as well as powers of attorney and medical powers of attorney. They can assist the executor of the will with preparing and filing of all documents required by a probate court.
Some people do estate planning on their own and others get legal advice from a probate or trust lawyer. As the executor winds up an estate, they may want legal advice from an experienced lawyer who is familiar with both state law and how the local probate court works. However, not all executors feel the need to hire a probate lawyer. If the estate doesn't contain any unusual assets and isn't too large, the executor may be able to complete the task without a lawyer's help.
Several factors may help an executor decide if they need the help of a probate lawyer. Was there any probate-avoidance estate planning? Assets can be transferred to their new owners without probate court if they are held in joint tenancy, survivorship community property or transferred to a
Living Trust. Probate is also unnecessary for assets for which the deceased person named a beneficiary—for example, retirement accounts or life insurance policy proceeds.
Things get more complicated when an estate includes a business, commercial real estate, or any other asset that requires special handling. You may want to consult experts if you need to manage, appraise, or sell a business.
If there's enough money to pay off debts (taxes, medical expenses, funeral costs, credit card bills, mortgages, car loans, etc.), with some left over for beneficiaries, you won't have to figure out which debts to pay. If your initial investigation reveals that there may not be enough money in the estate to pay debts and taxes, don't pay any bills before you get legal advice. State law gives some creditors priority over others.
Today, more than 99.7% of all estates don't owe federal estate tax. There's also a very small chance that the estate will owe estate taxes to the state. You may need expert legal and tax advice if the estate is large and must file an estate tax return, either with the IRS or the state taxing authority.
Many states offer small estate procedures such as summary probate and an entirely out-of-court process that requires presenting a sworn affidavit to the person or institution holding the asset.
Are family members talking about suing over the estate? Probate lawsuits tear families apart and can drain a lot of money from the estate in the process. A lawyer may be able to help the executor avoid a court battle or to deal with it if it is unavoidable.
Only you can decide if hiring a lawyer is right for you. Check out 12Law.com for listings of lawyers in your neighborhood.