It’s About Relationships

Navigating probate – many rules, many landmines

On Behalf of | Jan 11, 2022 | Estate Administration & Probate, Probate |

The probate process involves federal law, California law, California Rules of Court, and Local Rules. On top of that, sometimes there are international issues, and then there non-rule-based issues like communicating with court staff and judges. Frankly, there is no substitute for experience when probating an estate.

Federal, state, and local law

We have all heard that there is nothing certain in life, except for death and taxes. An executor (or administrator) must navigate federal tax laws, state taxes, and often local taxes, such as property taxes. If the deceased failed to report taxes (which often happens, especially when one is ailing for several years before death), it is the executor who must negotiate the cleanup. This may involve filing tax returns, paying unpaid taxes, and sometimes penalties. The executor must also file a final federal and state income tax return for the decedent. But income and estate taxes are not the only taxes. There are also property taxes. In many cases the county Assessor will reassess the property from the date of death. Even if an executor sells a house quickly, the Assessor may file a claim to “recapture” the increase in property taxes between the date of death of the deceased and the date the house will sell.

Besides tax law, there is the California Probate Code, California Rules of Court, and Local Rules of the various counties. This complex set of laws and rules can make the probate process quite cumbersome. Some counties, for example, require that the proposed executor provide drivers license information to the court in a confidential manner and others do not require this. Some counties have very particular requirements as to how court papers are titled or filed. Some counties have their own specialized forms that must be filed. These many laws and rules leave a lot of room for errors that can cause delay in the probate process.

Communicating with court staff

Court staff are often quite stressed, because they are handling many cases and are understaffed. Add to this the sometimes thankless public who does not appreciate the importance of the court staff, and you can imagine how stressful their jobs are. Probate clerks and probate examiners are on the front lines, processing documents and letting parties know what is needed in order to proceed in their matter. An executor, or the executor’s attorney, must interact with the court staff and know what to ask for in certain situations. For example, in many cases where there is an error in a document filed with the court, an attorney or executor can file a declaration with the court, and thus avoid delay in the administration of the estate.

Communicating with judges

Of course judges are humans with all the myriad traits of people. Probate judges are generally interested in moving cases along appropriately. Because the judge is often hearing 20 or more cases in one morning, time is also an issue. Judges can become understandably frustrated when a party takes a lot of court time talking about issues that are not relevant to the hearing scheduled that particular morning. It is important to know what matters and what is not relevant when communicating with a judge at a hearing.

An experienced probate attorney can help guide an executor through the many legal and other issues that must be juggled in order to complete the probate process. There is simply no substitute for experience.