Motley Fool makes common mistake about probate

Posted on Apr 01, 2009

This piece from the Motley Fool makes a common mistake about probate.  The article's main point is to hire a competent estate planning attorney while you are alive and well to put together an estate plan in order to avoid probate.  That's sound advice that everyone would do well to follow.

The article also says that if you die without a will or a trust the state takes over and your estate will linger for years in probate.  They are wrong on both counts.  First, if you die without a will or trust then the California Probate Code lists a series of people (e.g. your spouse or registered domestic partner, child, etc.) who have statutory priority to be appointed the administrator of your estate.  An administrator is the same as an executor but the title changes when there is no will.  The only way "the state" takes over is if no one comes forward to take charge of the probate.

The second mistake is saying the probate will take years.  California probate law presumes a probate will be finished in one year or less.  The executor has to go to court to get permission from the probate judge in order to keep an estate open longer than a year.  While this does happen it usually happens where there are exceptional circumstances.

The Motley Fool is right that you should have an estate plan.  They would be wise to consult a probate attorney when they want to know how probate actually works.

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The Grossman Law Firm, A.P.C. are Riverside, California probate lawyers.  We help probate estates in Riverside County, California.  We appear in the Riverside probate court for cases in the area bounded by Temecula, Corona, and Banning, California.  We appear in the Palm Springs/Indio probate court for cases from Palm Springs, Palm Desert, Rancho Mirage, Desert Hot Springs, Cathedral City, Indian Wells, and Indio, California.  If you  would like more information on probate and trust administration then order our free book The Insider's Guide to California Probate and Trust Administration as well as our free DVD Probate a Will or Administer a Trust After the Death of a Loved One.