Probate May 28, 2019

The Weight of Probate


Funeral arrangements and the grieving process should be the only thing on our minds when a loved one passes. Unfortunately, for those related to 65% of the 2.5 million people over the age of 30 who die owning at least one property – the process of the Death Probate can add significantly more to the plate.

Often times, the chosen or appointed Personal Representative lives in a state other than the decedent or, even more difficult, had a fragmented relationship with the decedent. Throw in family dynamics, finances, and a hurry-up-and-wait-timeline, and suddenly there are several reasons to have moments spent wondering, “What did I sign up for?”

I was recently referred a Probate for a family who lived in the Sacramento area. The decedent and subject of the Probate lived in Gilroy, 3 hours away from them in Sacramento, and part of my service area. Probate must be handled in the county of which the decedent was a resident. These clients were at the very beginning of the beginning and had no idea where to start – or what they were getting into.

I have worked the Santa Clara County Court Probate system repeatedly and got to work quickly. There are 1.9 million people living in the county and one probate judge. Meaning, before you can get access to bank accounts and entry into the estate property, your Petition for Probate needs to be sorted and filed amongst all the others and a hearing date calendared first come, first serve. This hearing date, at the time, was slated for at least 3 months in advance.

My first step was getting this family in to meet with an experienced Estate Planning Attorney to assist with the gathering of the necessary information to submit the court mandated judicial council forms.

You do not need to hire an attorney to start the Probate process. However, it bares mentioning that these forms can be complicated and errors, costly. A court clerk receives your pleading form, scans it for missing boxes and then, if filled out completely, stamps it with a “FILED” date and sends you back a copy. It can sometimes be weeks, or months later, when you receive a note saying that something was done incorrectly. It is then up to you to hurry and either correct the information, or risk getting your hearing pushed out – again, weeks out.

I’m going to go ahead and say it now – these clients and I did not make it past this stage.

This particular family hadn’t spoken to the decedent in 10 years. They couldn’t site a date specifically but when we had to track down the date of death through obtaining an out of country death certificate, the year of death was 2009.

The Petition for Letters seeks to confirm two important things. First, what legal standing you, or someone else petitioning to be appointed Executor, Administrator, or Personal Representative has and two, who the rightful heirs of the decedent are.

The attorney’s office asked us to compile a list of all living relatives of the decedent. My client was the sister of the decedent – one of 9 others. Most of the other siblings were deceased and had no living issue, otherwise known as children. However, a couple of them did have living children, but my clients had no idea where they lived or how to contact them.

Once you file a Petition for Probate, you are entitled to notify all potential heirs that you are doing so. This noticing is to allow anyone who may have an interest in the estate to be in the loop of the proceedings and bring about an action if needed.

Moreover, the dates of death of the siblings was important but also unknown. Three possible scenarios existed and affected the distribution of the estate:

  1. If a sibling had died prior to our subject decedent, their share was to pass to their children.
  2. If any of the siblings died before the decedent but had no children, their share would lapse and go back into the estate pot; or
  3. If a sibling died after the decedent, then their share would pass to the estate but would also need to be probated.

This family tree is where everything unraveled for this case. The cost to hire an out of country investigator was around $4,000. My client’s knees were starting to tremble.

Then, it came to light that the nieces and nephews who would potentially be getting their parents’ portion of the estate, had not treated my client well. THIS is where they buckled.

They very graciously and candidly told me that they would rather do nothing with this property, than invest time and money only to see a portion go to family members with whom they had a bad relationship.

As an advisor, I couldn’t understand. But, as a human, I most certainly could.

These were kind and quiet people. They did not care about the money. They had endured more than I was able to fully discover, and they’d watched their large family break apart into scattered pieces across continents. To revive and make public all of their pain, was too much for them.

Without a properly titled asset, death can be a process unimaginable. There is no way to fully prepare for what the Death Probate can uncover, but there is a way through it and it doesn’t have to be alone.