The probate process is one by which the law helps families determine what to do with the possessions of a deceased loved one, taking into consideration the law and their will, if it exists. While the probate process is not especially complicated, it can last well over a year, depending on the complexity of the estate and the circumstances tying up each piece of contested property.
Aside from a person’s property, another thing to be considered upon their death is whatever estate plan they left behind. This ties into how probate litigation will progress, drastically changing the outcome and duration of the process. With a few shortcuts and some on-hand local legal expertise, you can turn a potentially disastrous and expensive probate process into a quick and painless endeavor.
Overview of California Probate Law
Probate gets its name because its purpose is to prove – through the probate process, families are tasked with proving to a court that a presented will is the real and legitimate one, thereafter undergoing the arduous process of inheritance.
It begins with paperwork – first, the chosen administrator of a person’s will must file their will and death certificate with a probate court, to get the will legitimized and begin the distribution of the estate. If no will exists, then the probate process will start regardless, instead referring to California’s existing intestate laws to determine how much of what will go to whom, and for what purpose.
Intestate laws in California, to be concise, require that roughly half of what the decedent owned goes to their surviving spouse, while the rest goes to their next of kin, beginning with their surviving children. The spouse also receives full ownership of all previously jointly-owned/community property.
Due to the sheer length of the process, probate spells out two things: a financial cost, and a cost of time. The estate is tied up for the duration of the probate process, with a minimum period levied to ensure that any creditors can contact those in charge of the estate and prove that the deceased has a debt to be paid.
Meanwhile, both the administrator/executor of the estate and the attorney in charge of assisting the family and sorting through the paperwork need to be paid a share of the estate to go through with the probate process. While the amount paid is limited by law based on the size of the estate, it can still be a sizeable amount of money as time goes by.
Once the court decides the will is legitimate and no other family member objects or contests with a version of their own or an accusation of coercion, the administrator is given powers by the state to “administer the will”. That involves making a complete inventory of the estate, valuing the estate (which typically involves the services of professional valuators, especially in the case of vintage goods and jewelry), and finally, taking care of all newspaper announcements, creditors, incoming debts, financial obligations, and the distribution itself.
The average probate process takes over half a year, over the course of which the estate will slowly be funneled into its proper place, at several costs.
Choosing an Estate Executor
Ideally, an estate executor (or administrator) of a will is a family member well-versed in financial matters, with the time on their hands to take care of their duties as well as their other obligations. However, many families opt not to take on their responsibility, and have someone else be appointed as administrator in-charge of their estate. While this is legal, it is important to have full trust in your legal representative, preferably knowing them for a long period of time.
Under most circumstances, attorneys will refuse to act as executors to their client’s will, out of a conflict of interest. But when no other choice is visibly available, the law allows it. The only formal restrictions on applying as administrator to a will is that the applicant must be of sound mind, and of age.
There have been cases where attorneys have abused their power as administrator of an estate to sell or take control of property to serve their own interests. In California, a probate court can reject an applicant if they find grounds for removal, and any abuse of power can also result in an administrator being terminated from their position. However, that will incur further legal costs and more time spent in court. It is best to make the best choice possible early on – with the best choice being anyone you can trust.
Avoiding Probate in California
The probate process can be lengthy, and being a public matter, it also reveals the contents of an estate to the public record through the will. For those with large and complicated estates, or if you would rather keep the details of your estate planning private, there are alternatives to the lengthy probate process.
A living trust in California allows you to bypass most of the probate process by technically placing the contents of your estate under the ownership of the trust, rather than yourself. Anything you do end up owning that is not funded into the trust must be addressed and added to the trust through a pour-over will upon your death, which will then go through probate. That is why it is important to properly use and fund your trust by transferring title of assets into the trust. However, even with an imperfectly funded trust, the process is usually a much quicker probate process than the alternative, as only property held outside a trust goes through the court.
A trust also gives you more control over how your estate is distributed. For example, you can appoint your successor trustee to withhold the contents of the trust until certain beneficiaries reach an appropriate age. A trust also allows you to include your partial ownership over a property, thus allowing you to pass on partial ownership of a piece of co-owned land to your children, rather than having your ownership divided among the remaining owners.
There are other estate planning tools capable of bypassing probate. Certain ownership clauses allow you to name beneficiaries, so that when you die, that property or the contents of that account pass onto said beneficiary. These are payable-on-death accounts and transfer-on-death properties, which recently include vehicles in California.
Depending on the size, nature, and contents of your estate, you can bypass probate, ask for a short-form probate/summary probate process available only for smaller estates, or take advantage of a series of estate planning tools to completely optimize the inheritance process and make it as quick and cost-effective as possible. Be sure to contact a local legal professional and go over your options.
Common Questions About
Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset if it is owned in joint tenancy or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated. If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.
The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent’s closest relatives have the highest priority to become administrator of the estate. Depending on the circumstances, this person may be called the executor, administrator, personal representative, or administrator with will annexed.
Administration of the estate includes managing the assets to prevent losses, paying bills for the estate, filing tax returns, preparing an inventory of the assets, locating heirs, and dozens of other duties. The goal is to wrap up all of the loose ends of the decedent’s financial affairs and distribute the estate to the beneficiaries withut further legal problems.
Probate begins with the filing of a petition for probate at the Superior Court in the county where the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.
If the probate has no unusual problems, it can be concluded in eight to twelve months. That includes a four-month creditor’s claims period, and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held several weeks after the petition is filed. There may be other problems with creditors, taxes, or will contests that will delay the probate for longer periods.