In a recent episode of The Legal Odyssey Podcast, host Haylee Bramlet sat down with California Estate Planning Attorney, Mark Abell, to delve into the world of estate planning and probate law. In this enlightening interview, Mark Abell candidly shares his journey into the legal profession, revealing the pivotal role philosophy played in shaping his path to becoming an attorney. The conversation takes a deep dive into the emotional barriers that often deter individuals from hiring an estate planning attorney, shedding light on the importance of caring for loved ones through proper planning. Mark also demystifies the concept of probate and its various instances, including guardianship and conservatorship cases. He emphasizes the crucial role an estate planning attorney plays in streamlining and expediting the probate process and avoiding contested situations. Furthermore, the interview touches on the financial, temporal, and privacy concerns associated with probate court proceedings. This podcast episode offers a wealth of knowledge and practical insights into estate planning and probate, making it a must-listen for anyone navigating this complex legal landscape. Click here to listen in, or dive in and read about the interview below.
Why did you decide to become an attorney?
I majored in philosophy in undergrad and there’s not a high demand or job market for philosophy, or philosophers I guess. However, throughout that education you do read a lot about principles like justice and things like that. And so along the way I was also reading about a bunch of, what I felt were great, individuals of the past and great leaders and founders of the country. It turned out, a lot of them had a legal education. Basically at that point in time I talked to a bunch of advisors and they said, philosophy is actually a really good degree to set you up properly for law school because you study a lot of logic and things like that. So, I just went ahead and applied and went to Southwestern Law School.
What made you choose to focus then on estate planning as your firm’s practice area?
I took a law school course in estate planning and a practicum in estate planning as well, and I really enjoyed it. When I started out after law school, I just gradually started doing a few estate plans, starting with myself, starting with my family, kind of going from there, and then eventually specializing more and more into it and becoming more focused on it.
What values and principles guide your practice?
I’m trying to continually improve my craft and hone my skills. I constantly work on becoming more and more precise on the word name that I use and just becoming more and more efficient and continuing to build on the skills that I do have. I focus on constant improvement and evolution of the services I am providing.
What do you think is really the biggest challenge that’s holding people back when they are considering hiring an estate planning attorney in California?
After having done this for a while, I honestly think it’s more of an emotional issue and maybe a fear of thinking about one’s mortality or death and planning for situations that you hope to never have occur. However, I think it’s better to kind of address those concerns and need rather than pretend they are not possible. That way you prevent the issue of having your estate go sideways or something that you did not intend to occur.
I think another important perspective to consider as well, would be that you, most of the time, love your family and you want them to have what’s best. You want to prevent them from having to go through a painful, drawn out process when they’ve lost someone that they love and care about. It’s better to just deal with your estate plan and think about it out of a place of love for your family members, rather than a fear of confronting the unknown.
What is Probate?
In the simplest terms, essentially the governing bodies have determined that it doesn’t make any sense to have property sitting and wasting away in the name of a person that’s passed away. So they’ve created a process, called probate, to transfer property from an individual that’s passed away onto their heirs-in-law. It is basically just a one size fits all estate plan that the legislature has created for everybody.
When does probate occur?
There are a few different types of instances that occur. Probate is kind of a general term that is used. We have what’s commonly referred to as a probate court, a superior court for the state of California that primarily hears what they consider probate cases. There are a few different types of cases that are commonly heard.
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- One would be when an individual passes away, and that is what most people most commonly think of when they have a probate.
- The probate court also hears what we would call guardianship cases, which is where you have a minor that needs someone to take care of them, maybe because their parents have passed away or there’s some issue there.
- And then also, they hear what are called conservatorship cases, where the person is still alive, but maybe they have some type of capacity where they require someone else to take care of them. So for instance, it may be like an onset of dementia or Alzheimer’s or something of that nature.
How can setting up an estate plan with an estate planning attorney help with the hassle of probate?
Essentially when you go to see an estate planning attorney, we can draft custom documents to basically assist with the larger vision of what you want to, or what the client wants to have happen. Oftentimes that is avoiding probate completely, so we’re able to draft a set of documents that would allow them to avoid going to court at all. We would do essentially what we would call a trust administration, which is done privately in an attorney’s office.
Other times people would want to avoid situations where they would have to go seek a conservatorship or something of that nature under certain circumstances. There are additional documents that can be set up regarding that or basically whatever the client’s needs are.
How long to probate, guardianship, or conservatorship cases last?
It varies widely based on the case. I would probably group them into two different types of classes. The first would be what I would consider an uncontested proceeding, which is where you don’t have any individuals really fighting about everything. Everyone’s pretty much on the same page and those can go rather smoothly. The second category of cases that I would classify is contested hearings and those can be contentious and they can take a long time. I’m currently working on a case we filed in 2018. Now, obviously COVID played a role in that delay, but I mean, it can last several years.
Can setting up a thorough estate plan with an estate planning attorney help speed up the process and avoid lengthy proceedings?
Absolutely, because if you do an estate plan you are typically doing it privately. You would hire maybe a private professional fiduciary or you would hire an attorney or you would have an individual administering the trust on your behalf. Instead of relying on the probate court to administer the entire proceeding of the estate, the timeline is really just based on how busy that individual responsible for the estate plan is and how quickly they can go and execute the actions that need to be taken. Overall, you can really condense that timeline down significantly.
How can hiring an estate planning attorney help avoid contentested situations?
In most estate planning documents that are going to be drafted, you’re going to include what is commonly referred to as a no contest clause. The gist of that basically says that the client has created these set of documents and they intend them to be their disposition of their property upon their passing and that if anybody decides to challenge the validity of those documents in a court either through alleging that it was created by fraud, undue influence, duress, or something of that nature, that they would essentially be cut out from receiving anything. Oftentimes as if they had predeceased the individual that created the estate plan. We use that as a kind of threatening language that disincentivizes anyone to seek to challenge the documents, because if they do, then they would be cut out of their inheritance entirely. In practicality, you can sit down in the probate court and there’s a large number of cases that are contested. It really does depend on each specific instance and each specific circumstance, which would have to be analyzed on a case by case basis. I think probably on a whole that, if you do have a properly executed estate plan, it is going to head off a lot of the contentiousness and later issues that may or may not arise.
Why is it helpful to set up the plans that can help to avoid probate court?
In its simplest terms, essentially, a probate is a lawsuit. There are a few different pain points that come along with that.
- One is the financial aspect of it, right? So the estate is going to have to pay executors’ fees or administrators’ fees, as well as attorney’s fees and filing fees to the court.
- There’s a time pain point to that, which means that you’re basically at the mercy of the calendaring system of the probate code.
- There’s also the concern about the loss of privacy that comes along with probate court proceedings. When you are administering a probate, you don’t realize that you have to publish notice in the newspaper and that you’re having a lot of these hearings in open court, which means that anybody can walk into the courtroom to listen in.
- There is the family relationship aspect that we have discussed.
As an estate planning attorney in Arcadia, CA – If you had to give one piece of advice for our listeners, what would it be?
I would suggest that if you don’t have an estate plan or if you’re worried about an estate plan that was implemented, maybe about whether it needs to be updated or changes need to be made to it, I would suggest that people just go ahead and reach out to an estate planning attorney right away. A lot of them will offer free consultation or even a free review. It doesn’t hurt to at least just get an opinion on something so that way you know what you’re dealing with so you can make a well-informed decision.
In conclusion, our conversation with California Estate Planning Attorney, Mark Abell, has shed light on the often-overlooked but critically important realm of estate planning and probate. From the emotional hurdles that people face to the intricacies of probate and its potential pitfalls, Mark has provided a wealth of knowledge and practical advice.