The idea of probate litigation can be scary, and indeed, that fear is warranted. After all, when probate litigation ensues, it is a complicated court process, just like any other litigation. Though, demystifying probate can alleviate some of that fear.
The responsible party: Executor/administrator
First, before a person passes, they normally, at least, have a will. This will names the executor. It is the executor’s job to file the will with the probate court, report the estate to the IRS (and the state equivalent for state income taxes), settle debts and distribute the remaining assets to the beneficiaries (after court approval). The weight of the estate settlement is on the shoulders of this person, and this is why the executor or administrator usually hires a probate litigation attorney. Plus, this is a cost that can be paid from the estate.
Hopefully, the will contains an exhaustive list of assets to be accumulated for payment of debts and beneficiary distribution. Unfortunately, this is not always the case, and sometimes, the executor/administrator must go through the deceased belongings to find account statements, insurance policies, etc. It is extremely important to have a full account of these assets and debts to ensure that the estate is settled before the distribution of assets to the named beneficiaries.
Generally, after making a good faith effort to determine the debts owed by the deceased, creditors still have one year from that death to report additional debts to be paid from the estate. Though, the executor/administrator can deny payment, but the creditors can appeal that denial to the California probate judge.
A fear that many San Diego, California, executors/administrators have is cost. However, the cost associated with the probate process can largely be paid by the estate itself. In fact, even the costs associated with the executor or administrator themselves can be covered by the estate, as long as these administration costs are reasonable and customary.