Leaving a will is only half the battle. The other half is faced by your loved ones who, after you're gone, have to sort out your financial affairs.
In many cases, they'll face probate court. Probate is the judicial process used to implement the instructions you left in your will, to make sure that your financial affairs are handled in the way you desired.
Probate is widely perceived to be a confusing, legalistic process. Readers frequently write in with specific questions about a family member's will, probate procedures or a lawyer's handling of an estate.
Although I cannot answer each of these technical questions in this space, Nolo Press, the self-help legal publishing firm, recently released a new book by Julia Nissley that is an invaluable resource.
Called "How to Settle a Simple Estate," the 306-page volume takes readers step-by-step through the probate process for certain kinds of California estates that the author contends do not need the full-time intervention of a lawyer.
The book, written in an easy-to-understand and direct style, is meant to assist those who are attempting--without a lawyer--to settle a simple, uncontested estate consisting of such common assets as stocks, bonds, houses, bank accounts, cars and California real estate. Simple does not necessarily mean small . Even a $500,000, uncomplicated estate may not require a lawyer, Nissley says.
Much of the book applies only to estates of those who died after Jan. 1, 1985, when the probate code was amended. For settlement of estates of people who died before that time, Nissley suggests that a lawyer may be necessary.
Readers are advised by Nissley to obtain a lawyer for more complex estates that include such complicated assets as an ongoing business, partnership interests, out-of-state property or one that has beneficiaries fighting over their rightful shares.
Even if you are using a lawyer, the book, at $19.95, is probably worth the investment to help you watch and understand what the lawyer is doing. And before you hire a lawyer, skim through the book to see if you are ready to handle the challenge of probate court yourself.
It might save you a lot of money. Legal fees in probate court are set by law. The lawyer is paid a sliding scale percentage of the gross value of the estate, even though the net value, after deduction of debts, may be much less. The lawyer receives 4% of the first $15,000, 3% of the next $85,000 and so on. (This same fee schedule applies to the will's "executor," who is usually a family member.)
If you decide to do it yourself, as Nissley points out, you may not even have to go to court. She notes that printed fill-in-the-boxes court forms are now available, and "settling an estate by mail is now the norm in many law offices." The book also includes an extensive appendix with sample forms.
Nissley also explains how to transfer certain property outside of probate. For example, property held in joint tenancy is automatically shifted to the surviving joint tenant, thus avoiding probate. But even then, there may be "simple formalities" to complete to make sure that the stocks, car and house held in joint tenancy are put in the sole name of the surviving party. Nissley explains how to complete these formalities and includes sample forms.
She also has written a chapter explaining a California law that allows the transfer of personal assets in certain small estates by avoiding probate and instead using a simple "affidavit of transfer signed by the persons entitled to the property." If the gross value of the estate is less than $60,000 and does not contain real property in California worth more than $10,000, this simplified procedure may be appropriate.
It is important to understand the probate process, even if you are not an executor handling an estate but only a beneficiary.
For instance, as a beneficiary you should know that the lawyer, if there is one, who is handling the probate procedure is not your lawyer. The lawyer represents the executor of the estate, not the people who will be inheriting the assets in the estate. Although that usually is not a problem, and beneficiaries rarely require their own attorney, unless they are challenging the will, it's something you should know.
Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.