7 Mistakes New Probate Attorneys Make (And How to Avoid Them)

Introduction {#introduction}

Probate has statutory deadlines, court procedures, and compliance requirements. Miss something and you risk:

• Malpractice claims
• Personal liability
• Bar complaints
• Unhappy clients
• Financial losses

Every experienced probate attorney has stories about mistakes they made early on (or saw others make). Here are the seven most common — and how to avoid them.

Mistake #1: Missing the 90-Day DHCS Notice {#mistake-1-dhcs-notice}

The Error

Failing to send notice to Department of Health Care Services within 90 days of Letters being issued.

The Consequence

Personal liability for Medi-Cal recovery amount. DHCS pursues this aggressively. This isn't theoretical — attorneys have been held personally liable.

How to Avoid

• Calendar the deadline immediately when Letters issued
• Send via certified mail, return receipt requested
• Keep proof of mailing in file permanently
• Use software that tracks automatically

The Reality

This is the #1 malpractice trap for new probate attorneys. We've dedicated an entire article to this deadline because it's that important.

Mistake #2: Wrong Publication {#mistake-2-wrong-publication}

The Error

Publishing notice to creditors in the wrong newspaper or wrong county.

The Consequence

The creditor period may not run properly. Claims filed "late" may still be valid. The estate can't close until proper notice is given.

The Requirements

• Newspaper of "general circulation"
• Adjudicated for legal notices in that county
• In county of administration
• Publish for required period (typically once a week for three weeks)

How to Avoid

• Verify newspaper qualification before publishing
• Use established legal newspapers in each county
• Keep proof of publication
• Check county-specific requirements

Mistake #3: Incomplete Inventory {#mistake-3-incomplete-inventory}

The Error

Missing assets on the Inventory and Appraisal. Forgetting bank accounts, undervaluing property, missing vehicles or personal property.

The Consequence

Court issues. Beneficiary complaints. Possible breach of fiduciary duty claims.

The Requirements

Every asset must be listed:

• Real property (appraised by probate referee)
• Bank accounts (date of death balances)
• Investment accounts
• Vehicles
• Personal property of value
• Business interests
• Digital assets

How to Avoid

• Use a comprehensive intake questionnaire
• Request decedent's last 2-3 years of tax returns (shows income-producing assets)
• Order credit report (shows debts and accounts)
• Physical review of residence
• Title searches on real property
• Ask family members about all accounts

Mistake #4: Premature Distribution {#mistake-4-premature-distribution}

The Error

Distributing assets before the creditor period closes or before obtaining court authorization.

The Consequence

Creditors can pursue the personal representative. Surcharge liability. Beneficiaries may have to return funds to pay creditors.

The Rules

• Wait for 4-month creditor period to close
• Get court order authorizing distribution
• Pay valid claims first
• Follow statutory priority for creditors

How to Avoid

• Never distribute without court order
• Calendar creditor period close date clearly
• Verify all claims resolved before distribution
• Get signed receipt from each beneficiary

Mistake #5: Not Getting Court Approval for Actions {#mistake-5-no-court-approval}

The Error

Selling real property, settling claims, or taking significant actions without obtaining court approval first.

The Consequence

Action may be voidable. Personal liability. Breach of fiduciary duty. Having to redo transactions properly.

Actions Requiring Approval

• Real property sales (in most circumstances)
• Business sales
• Compromising or settling claims
• Borrowing money for the estate
• Certain investments

How to Avoid

• When in doubt, petition for court approval
• Review Probate Code requirements for each action
• Consult experienced probate attorney if unsure
• Document decision-making process

Mistake #6: Commingling Funds {#mistake-6-commingling-funds}

The Error

Mixing estate funds with personal representative's personal funds. Not opening a dedicated estate account.

The Consequence

Breach of fiduciary duty. Removal as personal representative. Personal liability. Possible criminal issues in extreme cases.

The Rules

• Open dedicated estate account immediately after receiving Letters
• All estate funds go into estate account only
• All estate expenses paid from estate account only
• Document every transaction

How to Avoid

• Open estate account within days of receiving Letters
• Train personal representative on requirements
• Review bank statements monthly
• Keep meticulous records
• Never "temporarily" hold estate funds elsewhere

Mistake #7: Poor Client Communication {#mistake-7-poor-communication}

The Error

Not keeping the personal representative and beneficiaries informed. Months without updates. Not returning calls.

The Consequence

Bar complaints. Malpractice claims. Unhappy clients. Bad reviews. No referrals. Damaged reputation.

What Clients Need

• Regular updates (monthly at minimum)
• Explanation of next steps
• Realistic timeline expectations
• Prompt response to questions

How to Avoid

• Set communication expectations at intake
• Monthly status emails (even if there's no news, tell them that)
• Respond within 24-48 hours
• Explain delays proactively before clients ask

Bonus: The Meta-Mistake {#the-meta-mistake}

Not Using Systems

The underlying mistake behind all of these: trying to manage probate without proper systems.

Probate has:

• Multiple statutory deadlines (90-day DHCS, 4-month inventory, creditor periods)
• Many forms (DE-111, DE-160, local forms)
• County-specific requirements
• Compliance obligations

Managing this manually — with paper calendars, sticky notes, and memory — leads to errors.

The Solution

• Software with automatic deadline tracking
• Checklists for each phase
• Template documents
• Calendar integration
• County-specific guidance
• Case management that doesn't let things fall through cracks

The attorneys who avoid these mistakes aren't smarter or more careful — they have better systems.

Every experienced probate attorney either learned these lessons the hard way or invested in systems early. Choose the second path.