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By: JENNIFER MACDONNELL
If you are new to the paralegal profession or just graduated from a paralegal program, it is safe to say you feel ready to conquer the world. Yes, we all have been there, over-confident and under-informed about the perils and triumphs of the paralegal profession. So now, you find yourself sitting at your desk staring at the word “Probate” written on a post-it stuck to the top of a manila folder. There are no other instructions, just the task at hand. Many of us can relate to this familiar situation. I have personally witnessed seasoned paralegals, who without skipping lunch, draft a Petition for Probate in just a few hours. For the rest of us, we are just thankful we had breakfast that morning.
So you ask yourself, what is the purpose of Probate? Although we all have access to the Probate Code and Court Rules, for beginners, locating a precise answer to this question could entail hours of frenzied research. The first step is to petition the court to have the client appointed as the Executor of a Will or the Administrator of an Estate. Once the Petition is approved by the court, the client will gain authority to manage the decedent’s assets in order to pay any debts, and then distribute the balance of the assets to the beneficiaries of a Will or to the heirs-at-law of the deceased.
Okay, so Aunt Sally died with a Will and had an Estate valued at One Million Dollars. Aunt Sally’s Will declared her Niece Beatrice as Executor and her cat Precious as the sole beneficiary. Niece Beatrice would need to petition the court for authority to manage Aunt Sally’s assets, pay any debts, and then distribute the remainder of the One Million Dollar estate to Aunt Sally’s cat Precious.
Welcome to the Probate Paralegal profession. In order to prepare a Petition for Probate, you will want to consider the Three P’s of Probate:
1. The Paperwork: First things first, get organized. Sort and read all the paperwork, starting with the attorney’s notes and finishing with miscellaneous documentation. While reading the attorney’s notes and reviewing the paperwork, you will want to ask yourself the following questions:
- Who is the client and what is their relationship to the decedent?
- Do I have the decedent’s death certificate?
- Where does the client reside and where did the decedent die?
- Is there a valid Will?
- Who are the beneficiaries or the heirs-at-law of the Will?
- If there is a Will, is Bond waived?
- What are the assets of the Decedent?
- Are there any encumbrances on the real property owned by the Decedent.
Although this is not an inclusive list, these are typical questions that a seasoned probate paralegal would begin to ponder immediately after the slight mention of Aunt Sally’s demise. A beginner’s useful reference guide should consist of a Petition for Probate, which most likely can be found on your state’s court web site. The questions asked on the Petition for Probate will be similar to the questions listed above and will direct you to key research words, the Probate Code or Court Rules for further direction. For example, what if Aunt Sally wrote out her dying wishes on the back of a cocktail napkin at her last bridge club meeting and after she signed and dated her handwritten Will, she had two of her best friends sign the napkin as witnesses? Is this type of Will valid and if so, can one prove it? The form Petition for Probate will require proof of a valid Will and prompt you to research whether or not Aunt Sally’s hand written cocktail napkin Will is suitable, as it was written.
2. The Players: At this point, you will have a solid idea of the players involved. The Players could include the following persons or entities:
- The attorney representing your client and any attorney representing a heir or beneficiary
- The client
- The heirs-at-law or beneficiaries of the Will
- Bond Company, unless Will has waived Bond
What if Aunt Sally’s Will did not declare her cat Beatrice as the sole beneficiary of her Estate, but instead, declared her “heirs-at-law” the sole beneficiaries of her cat Beatrice, along with her One Million Dollar Estate? The form Petition for Probate will ask very specific questions as to the survivors of the Decedent and will help you determine which of Aunt Sally’s relatives would stand to inherit Aunt Sally’s cat Beatrice and the One Million Dollar Estate.
3. The Property: Lastly, you will want to look very closely at the Decedent’s assets and then value those assets as of the Decedent’s date of death. You should consider the following:
- Are any assets held in joint tenancy, in the name of a Trust, or in the name of the Decedent?
- Did the decedent own any real property and are there encumbrances?
- Did the decedent own any Life Insurance, Pay-on Death accounts or Investment accounts?
- Did the decedent own any cash accounts?
It is important to keep in mind that assets (real property or otherwise) held in joint tenancy may pass directly to the surviving joint tenant. It is possible that Aunt Sally and Niece Beatrice were joint tenants of a pricey piece of real estate in Hollywood, California. Given that Aunt Sally has passed, Niece Beatrice would become the sole owner of that property, foregoing the Probate process entirely.
It is also essential to uncover the designated beneficiaries of a Life Insurance policy or Pay-on-Death account. If Aunt Sally was predeceased by her late husband Al, who happened to be the sole beneficiary of her Retirement Account, then this account would become a Probate estate asset.
Once you have taken the appropriate steps to discover the decedent’s Probate estate assets, the task of calculating Bond (unless Bond is waived by a Will) will be an easy task. For instance, unless Aunt Sally’s Will waives Bond, Niece Beatrice would need to be bonded, not only for her protection, but to protect the inheritance of Aunt Sally’s cat, Beatrice. If the Will did not waive Bond, the form Petition for Probate will prompt you to calculate a Bond amount just in case Niece Beatrice decided to steal the inheritance of Aunt Sally’s cat Precious.
So, if you are a new paralegal or just recently graduated from a paralegal program and you find yourself staring at the word “Probate” written on a post-it stuck to the top of a manila folder — do not fear! Simply consider the “Three P’s” of Probate and review the paperwork, players, and property. Instead of going head down onto your desk in despair, you will find yourself a confident and inspired paralegal, who without missing lunch, will manage to draft your first successful Petition for Probate. It will be your first step in conquering the unpredictable world of the paralegal profession, but for a paralegal that is new to the probate process, a big step indeed.