When you start to get serious about delving into the subject of estate planning it is likely that you will start to do some research on the Internet. When you do so you will invariably see mention of something called “probate” quite frequently, and you may wonder exactly what it is and what it is intended to achieve.
Probate can be defined as the legal process of estate administration, and during this interim the probate or surrogate court in the jurisdiction that is local to you determines the validity of your will and supervises the administration of the estate. This administration is done in a hands-on manner by the executor or personal representative.
The executor is chosen by you when you draw up your will, and this is not just a ceremonial position. The executor is going to have to have a good bit of business acumen because he or she will have to settle all of the debts that are outstanding and arrange for the distribution of assets to the heirs to the estate in accordance with your wishes. This distribution is oftentimes going to require the liquidation of assets, and this can be more complicated than it sounds like it would be.
Even if the executor is a business savvy individual, the probate process involves dealing with the court and any legal proceeding requires legal advice and representation. For this reason, the executor should retain the services of an experienced and qualified probate attorney who will help the executor navigate the process. Probate lawyers deal with the courts on a regular basis and understand the nooks and crannies of the system. They also can help the executor identify necessary resources who are familiar with the probate process, such as accountants, appraisers and liquidation professionals. The probate attorney will also advocate the wishes of the deceased, and of course potential will challenges do exist.
The reality is that the process does indeed require the assistance of an experienced and qualified probate attorney if you want everything to go smoothly and according to plan. It is best if the executor understands this from the beginning so that he or she can proceed confidently with the necessary professional guidance. In California, the probate attorney’s fees are paid for by the probate estate, i.e., the estate beneficiaries, not personally by the executor.