Top 5 Mistakes When Filing Probate Alone

Jan 20, 2016

While you can technically attempt to navigate probate court without legal counsel, there are a number of pitfalls along the way that can come with serious consequences. Here are the top 5 mistakes our team sees from clients who tried to take a “do it yourself” approach to probate.

Probate is one of the most complex legal matters an individual is likely to be faced with in their life, and it comes at the worst time — right after you’ve lost a loved one. Despite this, many people (for various reasons, but particularly due to misconceptions about the cost) attempt to navigate the California probate court alone.

In a previous blog post, we explained how California probate attorneys get paid — after the asset distribution, and as a percentage of that distribution. There is no up-front cost to ensure that a qualified attorney carries out the probate proceedings correctly.

When you try to complete a complicated, demanding legal matter like probate on your own, a mistake can have real consequences for you and the other beneficiaries. If you are the executor of the estate, the stakes are even higher, because the courts consider you personally responsible for managing the probate process. Here are the top 5 mistakes people usually make when trying to go through probate without legal guidance.

Mistake #1: Missing Deadlines or Documents

The California court system is vast and over-worked. As such, there are very specific requirements for the type of documentation that must be submitted, and very specific rules for when those documents must be filed (and in what order). These deadlines and documents are not suggestions, they are not optional, and they cannot be missed. The court is in no way obligated to keep you apprised of what you need to do — it is the responsibility of the executor (or ideally, the executor’s lawyer) to have that knowledge and carry it out.

Because the court is not responsible for holding your hand through the probate process, many a well-intentioned executor has bungled a probate filing over a deadline or document they didn’t even know existed. The executor has a very real fiduciary responsibility to the estate, meaning they can be held personally and financially liable for any discrepancies or mistakes made during the probate filings.

Mistake #2: Mishandling Creditor Claims

After an individual with an estate passes away, it is the role of the California probate court to establish a thorough reporting of the individual’s assets and debts as part of settling their affairs. The deceased’s debts must be handled in a very specific manner by the executor: for instance, all creditors must be notified of the probate proceedings; otherwise, they can come forward with a claim at any time in the future. Additionally, debts must be paid in a very specific order of priority based on criteria set by the court.

These are just two examples of the very careful way creditors must be handled when probating an estate. Should the executor fail to take care of the creditor claims in the appropriate manner, they could easily find themselves personally liable for the financial discrepancy that arises.

Mistake #3: Mismanaging Estate Assets

Mismanaging the estate’s assets comes with potentially the most dangerous consequences of all for the executor and the beneficiaries. Perhaps you are familiar with the old saying “ignorance of the law is not a defense.” In other words, just because you didn’t know you had to wait until a certain time to begin asset distribution, or that you needed to account for the assets in a specific way, or that you were not allowed to make a decision about a certain aspect of the distribution process, does not mean that you aren’t liable for your actions.

The probate process is supposed to ultimately increase the wealth of the beneficiaries by distributing the decedent’s assets to them. However, if the executor mismanages the estate’s funds during the probate process, they could find themselves financially in the red due to discrepancies in the estate accounting. This is not a consequence worth risking simply because you wanted to try your hand at legal filings without an attorney. There is a reason that difficult, specialized tasks like court filings are typically done by trained professionals. It is simply not something the average person will be able to execute perfectly their first few times through the process.

Mistake #4: Neglecting To File Taxes

This one is fairly straightforward: many executors have no clue that they are actually responsible for filing the estate’s taxes (those of the decedent) before the court can begin to get a clear picture of the assets involved. And of course, it’s not enough to just hastily file a tax return — it needs to be incredibly accurate and comprehensive in order to allow the next phase of the probate to continue without any hiccups.

Once again, if you are the executor, there is simply no margin for error where this is concerned. Besides being personally liable for financial discrepancies, you have a fiduciary responsibility to both the estate as well as the other beneficiaries. By neglecting to file (or inaccurately filing) taxes for the estate, you are costing yourself and the beneficiaries more money, time, and stress. The longer probate drags out, the more the estate can be whittled away in unnecessary fees and taxes, and the more potential there is for inter-family arguments and bad blood to develop.

Mistake #5: Paying Unnecessary Taxes and Fees

Ironically, the reason most people even attempt probate alone in the first place is because they think a lawyer will be too expensive. Aside from the fact that California probate lawyers don’t even get paid up-front, these people are totally discounting the fact that a good probate lawyer will know exactly where and how they can save the estate money in avoidable taxes and court fees. A person who thinks they will save money by not hiring a probate attorney is probably going to be the same person that pays unnecessary taxes, gets hit with fees for improper or late filings, and more.

Not only does hiring an experienced probate attorney take away the stress of being utterly responsible for the administration of the estate — it can also end up saving everyone involved substantial sums of money. That’s because a good probate lawyer knows the California tax code and the things that can be done to maintain as much of the estate’s value as possible, instead of bleeding cash back to the government.

A no cost consultation with a licensed and experienced California probate attorney regarding your unique and personal probate situation is available by calling:

1-888-LAW-3111 Monday-Friday, 8am to 6pm.

— Michael Avanesian, Esq.

Note: Attorney advertising. Nothing posted on this blog is intended, nor should be construed, as legal advice. Blog postings and hosted comments are available for general educational purposes only and should not be used to assess a specific legal situation. Nor does any comment on a blog post create an attorney-client relationship. The presence of hyperlinks to other third-party websites does not imply that the firm endorses those websites, their contents, or the activities or views of their owners.

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