As you may already know, probate is the court-directed process where a deceased person's assets are thoroughly accounted for, liquidated (if necessary), and then distributed after debts are paid. Although the probate process is based around a very technical and complex area of the law, the actual timeline to distribution is usually fairly straightforward. If there is a will or trust document, the terms of the document are honored and the distribution proceeds according to the stipulations as well as California probate procedure. If there is no will, the probate court establishes the fairest distribution configuration based on legal precedent, and proceeds from there.
However, there is one potential wrinkle that can turn a straightforward inheritance into a lengthy and gut-wrenching battle: a family member or third party who has contested the probate.
Contested probate usually occurs when one or more family members (or beneficiaries/potential beneficiaries) believes that they have a claim to the assets in question above and beyond what they are currently on track to receive from the probate process.
Of course, this takes many forms. Sometimes, the party or parties contesting the probate are doing so from a place of legitimacy and real concern, such as when an elderly person suddenly develops a relationship with someone that mysteriously appears in the picture right before they die... and that person conveniently ends up prominently featured in the will. Contesting that person's claim is often a matter of protecting the rights of the elderly, who often experience dementia or confusion in their final days.
Other times, an estranged family member or someone with dubious claim to the estate will surface during the probate process and demand to be cut in, despite not having a very firm claim to any of the estate. That person may attempt to contest a probate that is being conducted in good faith, simply because they are greedy or feel entitled to assets that they were not offered in the will.
Both of these scenarios are fairly common.
The ability to contest probate is an important part of the law that helps to protect families from being taken advantage of, and helps to fairly settle estates in a mutually beneficial way. However, it is also a very touchy area of the law, as it often concerns deep-seated family dynamics and relationships that may have decades of accumulated baggage. There is also the very real concern that, the longer probate drags on, the more the estate gets eaten away by legal fees and taxes.
First of all, whether the probate is being contested or not, it is extremely advisable that you hire the services of an experienced and licensed probate attorney.
There are several important reasons for this. First of all, particularly if you are the executor of the estate, you are bound by several legal requirements that can have severe and far-reaching repercussions if you fail to comply. An attorney will have the experience and know-how to keep you abreast of important deadlines, as well as ensure that all documents submitted to the court are properly prepared. That way, you don't accidentally get yourself into trouble.
Beyond providing experienced legal services, there is one other significant advantage to hiring a probate attorney if you are facing a contested probate situation. The last thing you want to do during a contested probate is to anger the other party or parties, as this can both make the probate process more toxic (and expensive), as well as permanently damage family dynamics for years to come.
Never underestimate the extent to which money issues can divide and damage a family. By hiring an attorney to handle all communications and procedures related to a contested probate, you effectively implement a safety valve into your family relationships. A probate lawyer is a neutral third party who will communicate without bringing any prior baggage or drama into an already hot situation. This ensures a better chance of tempers staying cool, and the family members involved get to avoid saying things that will only damage ties and provoke the other party to fight harder.
There is no margin for error when you are dealing with a contested probate situation. Real assets and relationships are on the line, and this is a process that can have a profound effect on your life for years to come. Instead of trying to "white-knuckle" your way through a contested probate, hiring a good probate lawyer to minimize the amount of assets eaten by taxes and fees will provide invaluable peace of mind. But most importantly, it will also ensure that cooler heads prevail and family relationships are not destroyed in the quest to distribute money.
-- Michael Avanesian, Esq.
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