Five Myths Regarding Probate and Estate Planning

The clients that we serve in San Diego County often have misconception about wills and trusts, estate planning and probate court in general. People think that probate court needs to be avoided at all costs. The truth is that every clients situation is different and the lawyers at Law Offices of Scott C. Soady, APC can meet with you to discuss an estate plan with a will or a trust that meets your individual goals. Here are some of those common myths and misconceptions regarding probate court, wills and trusts.

Myth #1 – The State or Government will take all of the money.

While there are certain costs associated with probate proceedings such as court filing fees and appraisal fees, they are relatively minimal. In San Diego the initial fee for filing a probate is $350. An appriaser appointed by the San Diego Probate Court is paid based on a small percentage of the value of the property. The main cost in a probate are administrative costs such as statutory attorney’s fees and executor or administrator fees. These fees are based on a sliding scale and vary depending of the value of the estate. For example, an estate valued at $1,000,000 the attorney’s fees would be $23,000 and the executor or administrator can be compensated the same amount as ordered by the probate court.

Myth #2 – If there is a Last Will and Testament probate is avoided.

The primary purpose of the probate court is to transfer assets of the decedent to the heirs or beneficiaries and to ensure that all just debts are paid. A Last Will and Testament is a statement of the intent of the testator, the person making the will, as to who his or her property should pass to. A will names a beneficiary and the probate court will ensure that the property passes to the beneficiary named. If a person dies intestate, meaning they did not make a will, the property will pass to the heirs at law by intestate succession under the probate code. All of the issues regarding the Last Will and Testament are handled through the legal process of the probate court.

Myth #3 – A Trust is the only method of avoiding probate court.

A Trust is one preferred estate planning method of avoiding probate court; however, there are other ways of avoiding probate court depending on each client’s individual needs and goals. Property can be held in Joint Tenancy or can have a beneficiary designation and would avoid probate court. Remember that probate court only deals with assets that are in the decedent’s name along. A person interesting in using other methods should consult with an experienced estate planning attorney before making or changing their estate plan since each method of estate planning has consequences.

Myth #4 – If there is a Will or a Trust then no one can contest it.

Unfortunately, there is no way to prevent disinherited heirs from filling a will contest or a trust contest in probate court even with an estate plan. As you hear in the news, people can go to court and fight over just about anything. That does not mean that they will win, it just means that they can. The grounds for contesting will or trust are fraud, undue influence and lack of capacity. There are ways to ensure that any contest will be most likely be unsuccessful and an experienced will and trust lawyer can help you.

Myth #5 – The Last Will and Testament needs to be notarized in order to be valid.

This may be true in other state but in California there are very strict formalities that need to be followed for a will to be valid. A Last Will and Testament that is typed must be executed by the testator and signed by two disinterested witnesses. A Last Will and Testament can also be handwritten by the testator and signed by him or her alone, this is known as a holographic will. A notarized will fails because there is only one witness to the document. As always in order to be sure that you estate plan is valid is to consult with a lawyer or attorney experienced with Wills and Trusts.