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Probate in Oakland, CA

Alameda County Probate Attorney

While I personally strive to make sure that all of my clients are prepared to not have to go through probate, probate is none the less a common experience in many families. Even the most organized and thoughtful human beings will often pass without drafting a will or drafting a will, but not holding the property in trust.

As part of the process, I will first explore if there are any other types of transfers [link to non-probate transfers) that are available to transfer title without probate. If there are not any meaningful alternatives, we will start the process.

Please review my Probate Intake Form to learn more about the topics I will go over during our first meeting, a brief overview of probate law, the documents we will need to move forward, and more details for compensation.

What To Do When There is No Will

The first thing the family needs to decide is who will be the executor. The executor is usually the spouse, and if no spouse, than one of the children, if no children, than a sibling. It does not have to be one of these people as long as everyone agrees on the best person.

The most important aspect of picking an executor is picking someone who will not make family conflicts worse. Being financially savvy or having a background in law is not that useful. Having the ability to distribute personal items without hurting anyone's feelings is priceless. They attorney is going to tell the person what to do so as long as they can follow directions, they are qualified for the job.

Paradoxically, the person who is presumed to have a right to be an executor by statute is also the person most likely to be in the most severe state of grief. If dealing with legal paperwork is going to make the grieving process more intense, I recommend that the family consider other options, such as an aunt or uncle who is available, retired, and would like to help the family out by offering to take on the job.

For the family of grieving spouses, please note that the surviving spouse even if not obviously shaken may need extra support, care and love for at least a year. Maybe two years. You know who people tend to say that couples share a brain? Well, when one-half of the brain is no longer there, it takes a long time for the other person to catch up. A person who recently lost a spouse and is otherwise mentally capable, will often have a hard time doing simple tasks such as reading and responding to bills or letters. They may also have a hard time expressing their need for new companionship and be extremely sensitive to loved ones and friends not returning calls or responding to letters. Holiday cards are a big deal. If a surviving spouse wants to serve as executor, I recommend that there be some friends or family that are on call to help them read and respond to email, find where to sign forms, and otherwise provide companionship during this time.

Choosing a Probate Attorney

Probate attorneys all charge the same fee as it is set by statute. I recommend that you select someone who practices in the area of probate and trust administration on a routine basis and that you like. You are going to have to spend some significant amount of time speaking and interacting with this person. This person may also need the skill to calm any angry beneficiaries. If you think your attorney is going to rub anyone in your family the wrong way, I would pick someone else.

Also note, that cousin Bob who works in insurance defense is not a great option. I have seen seasoned practitioners storm out of the Berkeley probate court yelling that it is actually impossible to comply with the local rules in Alameda County (even for a lawyer with 20 years' experience). Probate is a specific area of law and even those who work in it routinely are going to run into obstacles with the Court. This is part of the process, but it is likely to be a longer and messier process if you work with someone who does not routinely practice in probate and does not specifically calendar the amount of time necessary to represent probate clients.

The Probate Process

The probate process is difficult, but with the help of a caring advocate it can be slightly less painful. I often tell clients, in a half-joking manner, that the difference between probate and trust administration is that probate is like signing your family up for an audit after your death while trust administration is more like filing a tax return. Legally, probate and trust administration are supposed to be exactly the same thing except that in probate the court oversees the process. Practically, this means that in probate your family has to comply exactly with the local rules regarding how forms are filled in, that literally every cent is accounted for, and that everyone receives notices according to state statute. In trust administration, the rule is more, if everyone is in agreement, than you don't have to follow every nit-picky rule about how accounts are titled.

Generally, the process looks like this:

  1. Open probate. A petition for probate is filed with a request to approve or appoint an executor. The petitioning party sends notice to all the beneficiaries.
  2. Hearing to appoint executor. There is a hearing where the judge reviews the petition and if no one objects, prepares an order to appoint the executor.
  3. Executor gives notice. The executor publishes notice in the local newspaper and notifies all the beneficiaries of any upcoming major actions (such as selling a house).
  4. Pays Debts and Sells Property. Executor pays the debts of the estate including taxes, distributes personal items, and sells any property in the estate.
  5. Inventory and Appraisal. The executor than prepares and inventory and appraisal of what is in the estate (a list of what the person owned and how much it is worth).
  6. Final Account and Distribution. The executor than prepares and submits to the court an overview of the inventory and appraisal, how they believe it should be divided per the terms of the will, and asks the court to approve their actions.
  7. Close of Probate. The court issues an order approving the distribution, the executor sends out checks, and the probate case is closed.

A Couple of Notes About Probate

I highly recommend that any beneficiary of a probate estate not depend on the money they are planning to receive from the proceeding until they actually receive it. There are a hundred different reasons why the money not be available, there might be unknown creditors, litigation against the estate, or intense and lengthy litigation between the beneficiaries. Even if the money is all there and is coming to you, it may take years.

It is going to take longer than you think for the probate process to close. Houses not selling, water leaks, claims by caregivers, complicated creditor claims, busy courts that cannot re-schedule routine hearings for three months, all contribute to probate taking longer than anyone wants it to. If you have in your mind that you don't know how long it will take, you are right. No one knows how long it will take until you get your order for distribution.

Being an executor is hard. It requires a lot of work. I believe it is a kind thing for an executor to serve without asking for compensation, but I don't recommend it. There are two reasons why:

  1. It is a lot of work, and you probably are not used to working for free. There are going to be a seemingly endless list of things that the attorney, a beneficiary, or creditor needs from you. It will be a lot of work and it is easy to not want to do it even when you are getting paid. Doing it when you are not getting paid, might lead to a state of misery that is incapacitating.
  2. Getting tired can lead to litigation. The other issue is that if one person is doing all this work, and they are doing it for free, they might have a shorter fuse with complicated demands from their brother or sister who think they sold the microwave for less than it was worth at the estate sale they spent their entire Saturday hosting. This anger can build-up and lead to less than optimal communication which is often the source of litigation. Being paid for the time spent on estate tasks is fair and can help ease the feelings of one person carrying too much of the burden.

If someone is adamant that they want to serve without compensation, I recommend that they charge the estate for all of their expenses, the beneficiaries do something super nice for them at the end, and they communicate in the most loving and compassionate way during the process. Download and review the Probate intake form before our meeting here.​ Schedule a consultation with me today.

summerall law
Summerall Law, P.C. - Oakland Estate Planning Attorney
Located at 3873 Piedmont Avenue, Suite 8,
Oakland, CA 94611
Phone: (415) 944-9406
Local Phone: (415) 944-9406

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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