Losing a loved one can be incredibly difficult and emotionally exhausting. After a death, there is usually a transfer of property from the decedent to those left behind. This transfer process commonly requires going to probate court, although in California, there are circumstances that allow for the legal shortcuts. In instances where probate court is necessary, it is usually for the following reasons:
- To prove to the court that a Will is valid.
- To appoint a legal representative to act on behalf of the decedent.
- To identify assets and have them appraised.
- To pay outstanding debts and/or taxes.
- To distribute the remaining property to beneficiaries, and sometimes, determine who the valid beneficiaries are.
When is Probate Necessary?
Probate is not necessary when an individual has no property to transfer. In addition to this, there are instances of specific property (called the non-probate estate) that are not subject to probate. Examples of this might include:
- Assets that already have named beneficiaries (retirement plans, bank accounts, insurance policies).
- Property that may be co-owned. In these instances, the survivor may inherit the entire property.
- Real estate that has a beneficiary deed, sometimes referred to as a transfer-on-death deed.
- Property in living trusts.
California’s Simplified Procedures
The state of California allows some estates to forego the drawn-out probate process for a simplified process. This is generally reserved for instances in which the value of the estate is $150,000 or less, depending upon the type of property. There are also simplified ways to transfer assets to a surviving spouse, including life insurance, retirement, and property that is considered “community property”. However, it’s good to keep in mind that even in instances that qualify for simplified procedures, going to probate court may be a better option. Anyone who is unsure should consult with a qualified probate attorney.
Steps in Probate
While the probate process can vary in terms of steps and length of time (usually dependent upon the value of the state and the complexity of beneficiary claims), most cases include the following steps:i
- Request: The proposed executor or administrator of the estate needs to request a court hearing at which the Court confirms that person’s right to act on behalf of the estate. To do this, the executor or a probate attorney must prepare and file a Petition to Probate.
- Notice: Beneficiaries named in the decedent’s will and any legal heirs must be notified by mail of the death and date of the probate hearing. The representative must also publish public notice of the hearing to inform creditors and other interested parties about the hearing so that they have opportunity to object to the admission of the Will and/or the appointment of the personal representative.
- Hearing: The hearing determines the validity of the Will and the appointment of the personal representative. Absent objections, this is usually approved. The court may request the witness present during the signing of the Will.
- Assessment: The personal representative must then take inventory of the decedent’s assets and take possession of them. He/she must also pay off all debts and ensure tax returns are filed. They may be authorized to sell real estate, securities, or other assets either to produce cash or repay debt. Depending upon the complexity of the estate, this process can take up to a year.
- Filing: After paying debts and taxes, the personal representative must file a report to the court that includes all income received and payments made on behalf of the estate. The personal representative is then authorized to divide the remaining assets among those named by the Will and the property is then transferred to its new owners.
In order to move a probate case through the court system, the proper forms must be filed. This is true even when simplified procedures are used. Identifying the correct forms, ensuring that they are completed accurately and completely and that they are submitted in a timely manner can be complex – which is one of the reasons why securing a probate attorney can be much easier than self-administration.
Is there a way to avoid probate?
Yes, avoiding probate is possible in California, and it is best accomplished by pre-death estate planning that includes the development of a living trust. A living trust places all of your assets and property in a trust to be managed by a trustee for the beneficiaries. During your lifetime, you will serve as the trustee for all property in the trust. The trust will also define in detail how you would like your property to be distributed to all beneficiaries upon your death. In this manner, the trustee who assumes responsibility for the trust after your death can pass along ownership of your assets without having to go through the probate process. In some instances, this greatly reduces or eliminates estate taxes.
No matter your unique circumstances or the value of your assets, consulting with a professional probate attorney can help you to maximize your assets and ensure that they are distributed quickly and according to your wishes.