decedent does not have a living trust, his or her estate must be probated. This means that the administration of the estate is supervised by the probate court. Even if the decedent had a will, a probate is required. The first step is to petition the court to open a probate administration. Once the initial hearing on the petition is held, the court may appoint a personal representative to administer the estate. The personal representative can expect to inventory and appraise estate assets, manage creditor claims, handle tax returns, account to the court and request court orders on distribution of assets. A personal representative is entitled to compensation for his or her work in administering an estate. The California Probate Code sets the amount of a personal representative’s compensation, which is a percentage of the value of the estate’s assets. Many personal representatives who are also beneficiaries of an estate will waive compensation since compensation is taxable as income. The Superior Court of California for the County of Santa Clara has a fantastic website detailing the specific steps in a probate administration. How long can the process be expected to take? The timeline for administration of a trust and estate vary widely. While a trust administration is usually much quicker (nine months to one year), a probate will require more time. The average probate in California is rumoured to take anywhere from one year to 18 months to complete. With the significant caseloads currently handled by the probate courts, much of the delay is caused by time spent waiting for court availability, and some counties are more impacted than others. Complications may arise with sales of real property, creditor claims and other issues, requiring additional time. I also find that it is common for selfrepresented individuals to experience difficulty complying with the technical requirements of a probate administration, setting the timeline for completion back even further. Overlooking even a small procedural technicality may result in a continuance that causes months of additional delay. Are there any particularly common obstacles associated with estate administration? The most common issues that I see in my practice result from disputes between family members. These disputes may have their roots in deep family history and dynamics, but usually manifest as legal disputes over property ownership or entitlement to distribution. This could result in contests to the validity of wills and trusts, such as those alleging undue influence or lack of capacity, or lawsuits claiming an ownership interest is estate assets or wrongdoing by fiduciaries. How can these best be overcome, or otherwise prepared for before they become an issue? Proper and thoughtful estate planning is crucial. Drafting attorneys need to have foresight and must have the ability to anticipate the mess of potential issues 52 LAWYERMONTHLYMARCH 2023
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