At its most basic, probate is the process by which a court determines that a last will and testament is legitimate and provable. Without a will present, the California probate process can also become a means by which to determine how an estate is best distributed.
Yet while these two concepts seem quite simple, the process can be onerous at best.
The larger and more complex the estate, the longer and more expensive the probate process. The California probate process is not one of the worst in the country, but it is not a perfectly smooth process for many middle-class Californians either.
However, because probate is often necessary in one form or another, it is important for anyone interested in shaping their financial legacy to understand how the probate process functions, and how it is usually navigated.
Why Do Most People Try to Avoid Probate in California?
The probate process can be largely avoided and is not always necessary – provided you go through the effort to avoid it.
One reason many more wealthy people invest time and money to avoid probate is because it is slow. And because you are expected to keep a probate attorney on retainer throughout the entire process, the red tape surrounding the whole ordeal can leave a massive dent in one’s pocket.
More than just mildly annoying, this can be a great headache for families still grieving the loss of a loved one, confronted with the prospect of spending dozens of hours and thousands of dollars trying to incorporate their loved one’s financial legacy back into the family.
The larger the estate, the larger the dent – and depending on a person’s estate, it may be more cost- and time-effective to utilize other estate planning tools to bypass probate. A few of the common ways to bypass the probate process include:
- Payable-on-death and transfer-on-death accounts/assets.
- Living trusts.
- Property held in joint tenancy or community property.
- Assets that can smoothly be inherited by a surviving spouse.
Furthermore, when what is left after the tools and designations have been applied amounts to no more than $150,000, probate may be skipped entirely.
But for those who are going through the probate process, the right kind of preparation can do much to lessen the sting. Here is how the probate process typically goes:
Early Probate: Choosing an Executor & Beginning the Process
The first step to better managing the probate process is ensuring that you have a last will and testament, and a personal representative to help you execute that will.
This representative, also known as an executor, would likely be someone you trust and know personally, who has the capacity and administrative capability to carry out the distribution of your estate and the settling of any remaining affairs.
Once you’ve drafted, signed, and notarized (in many other states) a will and set up an estate plan with an executor at its helm, the next step occurs after you’ve passed away.
Your representative will be tasked with going to the local courthouse and filing for probate through a petition. The probate process doesn’t start until then, and it’s only through the probate process that property can be legally distributed as per a last will and testament.
Concurrent to the filing of an appropriate petition to begin the probate process, your executor must create notices to be published in the local paper, at least three separate times.
These notices are meant to alert creditors and others to your passing, so they can settle their affairs with you through the estate. A notice would have to be sent out to everyone mentioned in the will, as well.
Mid Probate: Proving the Will & Managing Assets
The next big step is to prove the will’s validity and determine the full extent and value of the estate.
At this point in the probate process, it is the executor’s job to begin taking inventory of the full estate and ensuring that every item is accounted for and properly valued by a professional (unless the value is already known).
If any disputes exist regarding the validity of the will – such as a newer last will and testament brought forth by a different family member – then time must be taken to deliberate which will is valid and which is not.
Logic dictates that the newest is the most valid, but wills can be forged or created under duress/after a person has lost the ability to think clearly and make decisions, often complicating deliberations. This is why it is critical to speak to your family about your estate plans and intentions before you pass away, so everyone can make peace with the decisions you’ve made.
Once a will is determined valid and the full extent of the estate is known and catalogued, it’s time for the final stages.
End of Probate: Settling Debts, Covering Costs, Distribution & Closing
As the executor is gathering all the assets, they must settle your affairs. This includes:
- Paying outstanding bills.
- Cleaning out properties and vehicles.
- Properly preparing vehicles and homes for harsh weather or seasonal changes (winterizing).
- Maintaining vehicles and keeping homes clean.
- Managing any and all assets while paying off any remaining debts.
Creditors must file a claim against the estate and have that claim go through the courts to determine its legitimacy before they can take from the estate.
Much like a ‘final’ tax return, any taxes that may be valid for your estate will have to be settled through the estate, and the executor. If this isn’t done, any money owed to the government will be taken from the executor themselves, as they carry liability and have a duty to properly carry out the entirety of the probate process with the help of the courts of California.
Should You Avoid the California Probate Process?
If the total sum of your estate is not likely to exceed the limit of $150,000, then there is a way to bypass most of the probate process through a streamlined summary of probate. A simple affidavit is all it takes to initiate this process.
However, even if the total sum of your estate exceeds that limit, the probate process does not have to be painful for most estates. You can save yourself some trouble by considering certain other solutions, such as transfer-on-death clauses on property that you own, but a skilled and experienced attorney can help you prepare for probate and get through it swiftly.
If your estate has many beneficiaries, properties and assets in different states, and a vast amount of wealth, probate can become a problem.
Under the right conditions, with the right help, the probate process can be effectively managed – but there are times when it’s best to avoid it.