Probate is the field of law that determines how an estate must be divided. Each state has its own laws and statutes requirements to determine if and how an estate must be probated. The probate court will supervise the process when a deceased person (a decedent) leaves assets to distribute, such as bank accounts, real estate, and financial investments with or without a will. The probate court provides the final ruling on the division and distribution of assets to beneficiaries.

In many cases, the decedent has established documentation, which contains instructions on how their assets should be distributed after death and designates in such documents who oversees implementing this process.  This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries. Where a decedent fails to establish such documents while alive, State law and the probate courts will dictate how the estate is administered and to whom assets get distributed to.

Probate With a Will 

A deceased person with a Will is known as a testator and he or she is deemed to have died “testate.” When a testator dies, the person designated as the executor under the Will is responsible for initiating the probate process. The probate process for a testate estate includes distributing the decedent’s assets according to the Will.

Probate Without a Will 

When a person dies without a Will, a person is to have died intestate. An intestate estate can also occur when a written Will is presented to the probate court and the probate court has been deemed the Will to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to State law.

What Is The Probate Process?

A probate court proceeding begins with the appointment of an administrator or executor to oversee the estate of the deceased person. Such personal is typically called the “personal representative.”  The personal representative receives all legal claims against the estate and paying off the outstanding debts. Also, the personal representative is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. Then the probate court will assess what assets need to be distributed among the legal heirs and how to distribute them.

The probate process can take a long time to finalize and can become costly, therefore it is important to know whether a probate is required following the death of an individual. The more complex or contested the estate is the more time it will take to settle and distribute the assets. Furthermore, the proceedings of probate court are publicly recorded so avoiding probate would ensure that all settlements are done privately.

Note though that having a Will does not mean that probate is avoided, it just serves a roadmap for the probate court.

With the proper planning while during a person’s life, the need for probate can be avoided.  But what happens if someone dies while a lawsuit is pending or if a lawsuit needs to be brought on behalf of decedent?

Personal Injury Lawsuit

A personal injury case does not die with the person who is injured. However, a person’s death does change the parties to the case given that the injured person’s personal representative takes over for the decedent as the plaintiff, but, it does not change the fact that this person suffered injuries and damages as a result of the at-fault motorist’s actions. Thus, the decedent’s estate can still receive compensation for the injuries and damages suffered by that person prior to her death as a result of someone else’s negligence.

If a plaintiff files a personal injury lawsuit against an at-fault party and then dies for reasons unrelated to their case the plaintiff’s surviving family members would have grounds for a survival action on behalf of the deceased. If successful, they could recover compensation for losses incurred up to the plaintiff’s death. However, the estate would not have grounds for a wrongful death lawsuit in this case. Depending on the state a survival action is a legal process that allows another person to begin or continue an injury claim on behalf of a deceased victim. When someone files a survival action, they essentially act as a substitute for the deceased, and any money they recover will go to the deceased person’s estate.

Furthermore, if the at-fault person passes away before the plaintiff’s personal injury lawsuit has concluded it is still possible to get compensation from the at-fault deceased person’s estate. However, a plaintiff will need to go through the probate process to get money from the estate and become a creditor.

Wrongful death claim

In contrast to a personal injury lawsuit with a decedent, a wrongful death claim allows certain eligible survivors to seek compensation for the losses they incur as a result of their loved one’s death. These losses include medical costs, funeral expenses, loss of the deceased future income and financial support, loss of companionship, loss of emotional support from the deceased, and burial expenses. California’s wrongful death law outlined in the statute Code of Civil Procedure 377.60  allows surviving family members or the estate to sue for damages when a person dies as the result of someone else’s wrongful act- whether the act was negligent, reckless, or intentional.

Medical Malpractice

Different states have different laws that govern who is eligible to bring a wrongful death action on behalf of a loved one who died from a medical error or a doctor’s negligence. Some states only allow a surviving spouse or a child under age 25 to sue for medical malpractice damages, whereas some states give a broader reach to various family members of the decedent. In California the statute of limitations for medical malpractice suit is typically three years.

Every state is different, but generally, there are two types of lawsuits you may file on behalf of a loved one who died due to medical malpractice: a wrongful death action and a survivor action. Since each type of lawsuit entitles you to a different set of damages, many plaintiffs file both.

• Wrongful death claim

In contrast to a personal injury lawsuit with a decedent, a wrongful death claim allows certain eligible survivors to seek compensation for the losses they incur as a result of their loved one’s death. These losses include medical costs, funeral expenses, loss of the deceased future income and financial support, loss of companionship, loss of emotional support from the deceased, and burial expenses.

• Survivor Lawsuit

A survivor lawsuit is filed because if the survivor had lived, they would have been eligible to file a claim for damages against the negligent doctor or healthcare provider. It refers to the principle that the deceased’s right to sue survives their death. The damages recoverable in a survivor lawsuit include, pain and suffering, emotional anguish, fear, anxiety, and humiliation, grief, and loss of enjoyment of life.

Loss of Chance Doctrine

Depending on the state a wrongful death or survivor lawsuit may be brought if the decedent was suffering from a terminal illness or injury and may have died from medical malpractice, even if they had a low chance of survival. Some states have the loss of chance doctrine. This doctrine may allow the decedent’s loved ones to sue if a doctor’s actions or inactions took away a legitimate chance at the decedent’s survival, even if the chance of survival was small. Since California is a comparative negligence state, it does not follow the “last clear chance” doctrine. California allows you to recover damages even if you are primarily responsible for your injuries. However, your damages will be reduced by your own degree of fault.

Civil Lawsuit

If plaintiff or defendant in a civil lawsuit dies before the case is settled, the court will usually put the lawsuit on a temporary hold whereby a “Suggestion Of Death” is filed with the Court. This hold is intended to give the probate court the time it needs to appoint a personal representative for the deceased plaintiff’s estate or for the defendant’s estate. As soon as a personal representative is appointed, the personal representative can continue with the civil lawsuit.

What Should You Do?

Don’t let the death of a loved one freeze or prevent lawsuits from moving forward and thus delay the compensation you deserve.  The probate process can be expensive and complex especially during a time of grief. That is why you should reach out to a Trusts and Estates and/or Probate Attorney such as the attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. . We are always thinking of ways that our clients can save on taxes, trusts and estates planning, and probate matters. Whether or not a will or trust exists, the expertise of a skilled lawyer at the  Law Offices Of Jeffrey B. Kahn, P.C. is needed to help protect the interests of the parties involved. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), Los Angeles and elsewhere in California are highly skilled in handling tax and probate matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income. Also, if you are involved in cannabis, check out what our cannabis tax attorney can do for you. Additionally, if you are involved in cryptocurrency, check out what a bitcoin tax attorney can do for you.

Probate is the field of law that determines how an estate must be divided. Each state has its own laws and statutes requirements to determine if and how an estate must be probated. The probate court will supervise the process when a deceased person (a decedent) leaves assets to distribute, such as bank accounts, real estate, and financial investments with or without a will. The probate court provides the final ruling on the division and distribution of assets to beneficiaries.

In many cases, the decedent has established documentation, which contains instructions on how their assets should be distributed after death and designates in such documents who oversees implementing this process.  This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries. Where a decedent fails to establish such documents while alive, State law and the probate courts will dictate how the estate is administered and to whom assets get distributed to.

Probate With a Will 

A deceased person with a Will is known as a testator and he or she is deemed to have died “testate.” When a testator dies, the person designated as the executor under the Will is responsible for initiating the probate process. The probate process for a testate estate includes distributing the decedent’s assets according to the Will.

Probate Without a Will 

When a person dies without a Will, a person is to have died intestate. An intestate estate can also occur when a written Will is presented to the probate court and the probate court has been deemed the Will to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to State law. State law does not allow for a blood-line heir to be disinherited.  That can only be done using a Will.

What Is The Probate Process?

A probate court proceeding begins with the appointment of an administrator or executor to oversee the estate of the deceased person. Such personal is typically called the “personal representative.”  The personal representative receives all legal claims against the estate and paying off the outstanding debts. Also, the personal representative is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. Then the probate court will assess what assets need to be distributed among the legal heirs and how to distribute them.

The probate process can take a long time to finalize and can become costly, therefore it is important to know whether a probate is required following the death of an individual. The more complex or contested the estate is the more time it will take to settle and distribute the assets. Furthermore, the proceedings of probate court are publicly recorded so avoiding probate would ensure that all settlements are done privately.

Note though that having a Will does not mean that probate is avoided, it just serves a roadmap for the probate court. There are several options involved with end of life planning to help avoid the probate process.

How To Get Money Due To You?

When a person owes you money and dies funds can still be potentially be recovered from the decedent if proper procedure is filed. If someone dies and they owe you money, you are a creditor of their estate. Under the California Probate Code, a creditor has one year to bring a file a claim in probate court against the estate or they are barred by law from enforcing that debt. If the funds are not secured by real property, such a mortgage, a creditor has a limited amount of time to file or they are barred by law from collecting their debt from the decedent’s estate.

• Filing a Statement of Claim – Any creditor of the deceased person may prepare a written “Statement of Claim” to try to recover from the decedent’s estate.  The Statement of Claim is then filed in the probate case of the decedent. The Statement of Claim should include the following information: the basis of the claim; the name and address of the Claimant (and their attorney); the amount of the claim; when the amount is due or will become due; if the debt is contingent or unliquidated; and if the debt is/is not secured. When a Statement of Claim is timely filed in a probate case, the person administering the probate case will have to resolve the claim by either: paying the claim, objecting to the claim, paying a portion of the claim, or not paying any of the claim if the estate has insufficient assets to pay the claim.
• Filing a Caveat – If there is no probate case for the decedent, a Statement of Claim cannot be filed as there is no one in place to resolve the decedent’s debts.  However, a document called “Caveat” can be filed with the probate court in the county where the decedent resided at the time of their death.  The Caveat is a written notice to the court so that the person who filed the Caveat, known as the “Caveator”, is notified if any probate case is filed in the decedent’s name. When a creditor files a Caveat, the Clerk of Court is required to notify the creditor if a probate case is started and to provide the creditor with contact information for the person who initiated the probate proceedings.  Once creditor is notified of a probate case being opened the Statement of Claim would then be prepared and filed in the probate case by the Caveator.

What Should You Do?

Consider reaching out to a Trusts and Estates and/or Probate Attorney such as those at the Law Offices Of Jeffrey B. Kahn, P.C. We are always thinking of ways that our clients can save on taxes, trusts and estates planning, and probate matters. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), Los Angeles and elsewhere in California are highly skilled in handling tax and probate matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income. Also, if you are involved in cannabis, check out what our cannabis tax attorney can do for you. Additionally, if you are involved in cryptocurrency, check out what a bitcoin tax attorney can do for you.

Probate is the field of law that determines how an estate must be divided. Each state has its own laws and statutes requirements to determine if and how an estate must be probated. The probate court will supervise the process when a deceased person (a decedent) leaves assets to distribute, such as bank accounts, real estate, and financial investments with or without a will. The probate court provides the final ruling on the division and distribution of assets to beneficiaries.

In many cases, the decedent has established documentation, which contains instructions on how their assets should be distributed after death and designates in such documents who oversees implementing this process.  This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries. Where a decedent fails to establish such documents while alive, State law and the probate courts will dictate how the estate is administered and to whom assets get distributed to.

Probate With a Will 

A deceased person with a Will is known as a testator and he or she is deemed to have died “testate.” When a testator dies, the person designated as the executor under the Will is responsible for initiating the probate process. The probate process for a testate estate includes distributing the decedent’s assets according to the Will.

Probate Without a Will 

When a person dies without a Will, a person is to have died intestate. An intestate estate can also occur when a written Will is presented to the probate court and the probate court has been deemed the Will to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to State law.

What Is The Probate Process?

A probate court proceeding begins with the appointment of an administrator or executor to oversee the estate of the deceased person. Such personal is typically called the “personal representative.”  The personal representative receives all legal claims against the estate and paying off the outstanding debts. Also, the personal representative is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. Then the probate court will assess what assets need to be distributed among the legal heirs and how to distribute them.

The probate process can take a long time to finalize and can become costly, therefore it is important to know whether a probate is required following the death of an individual. The more complex or contested the estate is the more time it will take to settle and distribute the assets. Furthermore, the proceedings of probate court are publicly recorded so avoiding probate would ensure that all settlements are done privately.

Note though that having a Will does not mean that probate is avoided, it just serves a roadmap for the probate court. There are several options involved with end of life planning to help avoid the probate process.

Bypassing Probate

Use Of Probate Affidavits – If an estate is small enough to bypass the probate process, then the estate’s asset may be claimed using alternative legal actions, such as an affidavit.  State law will determine whether this process is available and if so the limitations and restrictions.

Use Of Beneficiary Designations – Some assets can bypass probate because beneficiaries have been initiated through contractual terms, such as pension plans, life insurance proceeds, 401(k) plans, medical savings accounts, trusts, living trusts, and individual retirement accounts (IRA) that have designated beneficiaries. However, if the beneficiary designation is missing or rules of succession for the asset are not clear, then the asset is transferred according to the Will, or to the deceased’s estate and therefore the asset will need to go through probate.

Joint Tenancy with the Right of Survivorship – Property owned in joint tenancy automatically passes, without probate, to the surviving owner(s) when one owner dies. Joint tenancy often works when couples (married or not) acquire real estate, vehicles, stocks, bank accounts, securities, or other valuable property together.  In Non-Community Property States, married couples (or registered domestic partners or civil union partners) take title not in joint tenancy, but in “tenancy by the entirety”. Both avoid probate. Joint tenancy is easy to create and easy for the survivor to transfer title to himself or herself after one owner dies. When one joint owner dies, the surviving owner(s) automatically get the deceased owner’s share of the joint tenancy property.  The property doesn’t go through probate court—the survivor(s) still need to fill out some paperwork and present it with the death certificate to the keeper of the ownership records to obtain the property into their names.  If you’re a joint tenant, you can’t leave your share to anyone other than the surviving joint tenants. The surviving joint tenant will automatically own the property after your death.  However, there are some drawbacks to joint tenancy such as, the last surviving joint tenant must use another method to avoid probate at death, probate isn’t avoided if both owners die simultaneously, share of each owner must be equal in most states, and if you own property by yourself, adding a joint tenant requires making a gift of a half-interest in the property.

Utilizing Trusts To Avoid Probate

Trusts are created by contracts usually set up with a written contract called a trust agreement. The trust maker (usually called the grantor or settlor) creating the trust will need to name a trustee (or trustees) in charge of the trust and the trust property, and the trust agreement must name a beneficiary or purpose for whom the trust property is held.  A trust can be revocable or irrevocable.

• Revocable Trusts (sometimes called Living Trusts) – the grantor often names himself or herself as the initial trustee. The trust agreement should provide for successor trustees that can replace the initial trustee once the initial trustee steps down. The initial beneficiary of a revocable trust is usually the grantor, and when the grantor dies, the grantor’s children are usually the successor beneficiaries.  The trust agreement is a legal document, similar to a Will. The trust agreement lays out the terms, rules and provisions of the trust and the assets in it. A trustee who has a fiduciary duty is designated by the grantor as the individual (or entity) who, at a certain point, will control those assets for the benefit of the beneficiaries. The trust agreement allows a trustee to manage the assets in the trust and transfer them to beneficiaries after the grantor’s death. However, unlike a Will a trust takes effect while the grantor is living, and you can have both a trust and a Will. The trust does not have to go through probate for assets to go to beneficiaries when the grantor dies or becomes incapacitated. Assets must be assigned to the trust to be covered by its terms. That means they are re-titled to indicate ownership by the trust. The types of assets that can be assigned to (or fund) a trust include real estate (land, commercial property, homes), financial accounts (life insurance policies, checking accounts, savings accounts, money market accounts, stock and bond certificates, money owed to you, non-qualified annuities), personal property (jewelry, artwork, antiques), and business interests.
• Irrevocable Trusts – operate in a similar manner as revocable trusts; however, oince executed the terms cannot be changed. They are typically used where the value of the estate is expected to be higher enough that there will be estate taxes or the grantor desires a layer of asset protection.  Special rules apply in order to address these objectives or concerns.  Irrevocable trust agreements should name a trustee other than the grantor, and an irrevocable trust will often name a beneficiary who is not the grantor.

Benefits of Trusts

In both revocable and irrevocable trusts, the trust agreement will name a trustee who has legal control and authority over the trust, and the trust agreement will also name a beneficiary who has equitable rights over the trust property. For either kind of trust, the trust maker must title property into the name of the trust, usually by naming the trust as owner of a financial account, or perhaps by filing a deed with a county recorder, naming the trust as owner of real property. Also, trusts avoid delays, probate costs, publicity from probate and family disputes, may be drafted to protect property from going to a beneficiary who has creditors or to preserve trust property from going to a beneficiary using government benefits, and they may help prevent many costly estate administration mistakes, such as taxes and beneficiary disputes.

What Should You Do?

The probate process could be expensive and complex especially during a time of grief. Consider reaching out to a Trusts and Estates and/or Probate Attorney such as those at the Law Offices Of Jeffrey B. Kahn, P.C. We are always thinking of ways that our clients can save on taxes, trusts and estates planning, and probate matters. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), Los Angeles and elsewhere in California are highly skilled in handling tax and probate matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income. Also, if you are involved in cannabis, check out what our cannabis tax attorney can do for you. Additionally, if you are involved in cryptocurrency, check out what a bitcoin tax attorney can do for you.