Navigating The Confusing Nature Of Probate And Estate Administration
After the death of a loved one, the last thing you want to do is engage in a lengthy, confusing court procedure known as probate administration.
Probate, the court process of overseeing the administration of a deceased individual’s estate, is intended to ensure that final expenses are paid and the remaining assets are distributed to the beneficiaries named in the will. Every estate is different, so navigating the application of probate laws and rules regarding trust administration can be complex. If you are entering the probate process or need assistance with a trust, an experienced attorney can provide much-needed guidance during this time.
At Temmerman, Cilley & Kohlmann, LLP, in San Jose and Danville, our attorneys provide comprehensive assistance in all aspects of probate and estate administration. We administer a wide variety of estates, from small, straightforward wills to trusts worth hundreds of millions of dollars. Our clients include private professional fiduciaries, corporate fiduciaries and individual family members. With a team of skilled attorneys, including several who are board-certified and even a CPA, we have the depth of resources necessary to handle even the most complicated trust administrations.
What Is The Probate Process?
The Superior Court of the County of Santa Clara has a diagram that outlines the steps required in the probate process. It should be noted that the timing of the steps shown on this diagram varies depending on several factors, including:
- The nature and complexity of the estate
- The amount of time required for the probate referee to complete appraisals
- The number of creditors filing claims against the estate
- Sale of any real property
- Filing of any estate tax returns
- The court’s schedule
- Any disputes involving the estate
The absence of a will can further complicate this procedure. If the deceased individual, or decedent, died without a will, or “intestate,” then the decedent’s estate is distributed to heirs as defined under California’s laws governing succession.
In general, however, the probate process involves filing a petition for probate with the applicable court. Then, there will be a hearing and you must give notice to creditors. Next, you will pay outstanding debts and taxes, which may take up to a year to complete. Finally, you will file an accounting and final petition for distribution. If all goes smoothly, you will receive approval for distribution after a final hearing. In all, this process could take anywhere from six months to more than a year. Additionally, if any beneficiary or related party disputes the will or any estate documents, then probate may take considerably longer.
How A Probate Attorney Can Add Value
Our attorneys understand all aspects of the estate planning and probate process and are prepared to provide counsel to our clients for all legal and tax issues that arise after the death of a loved one. We can assist with the following probate administration services:
- Preparing all necessary court pleadings
- Court appearances
- Assisting personal representatives in the preparation of an inventory of estate assets
- Marshaling estate assets
- Handling liquidity issues
- Sale of estate assets
- Payments of the decedent’s debts
- Addressing creditor claims
- Final distribution to those entitled to the decedent’s estate
- Resolution for a wide range of disputes that arise throughout the process
Our attorneys also internally prepare accounts for trust beneficiaries and estate and gift tax returns and defend those tax returns if they are audited. We have been successful at obtaining extensions of time to pay estate taxes, as well as convincing the court to modify and terminate irrevocable trusts that are no longer serving their intended purpose.
What Is Trust Administration?
Administering a spouse’s or parent’s trust after death is often a confusing process. If you are a trustee, then you may have questions about how to manage your loved one’s assets or distribute them to beneficiaries. Our attorneys understand that this can be a difficult time for surviving family members. Therefore, we remain involved with trustees from beginning to end. We provide a full range of trust administration services and step-by-step guidance to assist a trustee, including:
- Inventory of trust assets
- Value of trust assets
- Providing notifications to trust beneficiaries
- Sale of assets when necessary
- Distribution of assets to subtrusts or outright to beneficiaries per terms of a trust
- Checklist of action items for trustees to attend to
We work closely with our trustee clients to ensure that they understand their fiduciary duties. We also advise them on how to protect themselves from incurring liability to the beneficiaries of the trust. If you have existing relationships with financial planners, accountants or insurance brokers, then we can work as a team with those professionals to ensure the smooth and efficient administration of the trust.
Frequently, we receive and accept referrals from other attorneys in cases where the trust administration process has broken down, such as if co-trustees have difficulty working together. In some cases, trust documents include unclear and conflicting terms, leading to disputes. Sometimes, we can solve these disputes through mediation or negotiation. However, we also provide comprehensive services in trust and estate litigation if it becomes necessary to go to court.
What Happens If A Trust Includes Complex Assets?
Thanks to the depth of our resources, our attorneys can take on trust administrations that include a wide array of complex assets. We have advised and assisted trustees in the administration of trusts that included wineries, hotels, restaurants and art galleries. Other examples of complex assets include:
- Limited liability companies (LLCs)
- Limited partnerships
- Closely held family businesses
- Wholly or partially owned businesses
- Wholly or partially owned physical properties
When necessary, we also advise and assist in the sale of some of these properties to raise funds to pay estate taxes. We also counsel trustees on completing due diligence to ensure the appropriate management of trust businesses.
Contact Our Attorneys For Probate And Trust Administration Services
Since 2001, our probate lawyers have been successfully assisting clients in estate and trust administration. Consult with a member of our legal team by calling 408-780-1912 or by contacting us online.