Probate is a complex and often frustrating process, especially without the necessary legal guidance. Whether you are in estate planning mode and seeking ways to avoid probate, or a loved one has passed away and the estate is subject to probate, the experienced estate planning attorneys at The Werner Law Firm can provide support.
When a person dies, their estate is distributed to legal heirs and beneficiaries. Probate involves the legal process in which a decedent’s estate is distributed. If there is an asset in the decedent’s name alone that does not have a named beneficiary, then the probate process may be the only way to gain access to that asset.
Even if there is a trust or will, probate isn’t necessarily avoided. For example, there could be problems with the trust that cause it to have to go through probate. This situation occurs when there is an asset that requires a title transfer. A will alone usually simply identifies beneficiaries, and may not actually help avoid a probate proceeding.
An example of a title transfer that triggers the need for a probate proceeding is when a married couple resides in a home together, but only the decedent has title. If the decedent attempts to leave the home to someone other than the spouse, probate ensues.
When someone dies in California without a will, referred to as intestate, a probate process is usually required unless the decedent had engaged in other forms of careful planning, which is typically not likely.
Opening probate begins with identifying the proper probate court with jurisdiction. The decedent’s death certificate is then filed through that court, followed by lodging of the original of the will (if available) at the appropriate courthouse.
The court then appoints a personal representative to settle the estate. This person may have been named in the will as an executor. If the will does not specify an executor, the court will appoint a personal representative, which is likely to be a spouse or other beneficiary. In our probate cases, we ask that our client be appointed by the court as personal representative.
The personal representative takes inventory of the entire estate and assigns a value to the respective assets. During this process, the personal representative also takes possession and control of the estate’s property. Before taking control of the estate, the personal representative may need to hire an expert to accurately value the estate.
From here, the personal representative should apply for informal probate of the will. If approved (or there is no will), informal probate may proceed. However, if the will is contested, formal probate or litigation will ensue to determine whether the will is valid.
The personal representative notifies the decedent’s creditors of the probate process, and alerts them to the deadline to bring any claims against the estate. Public notice published in a newspaper may be sufficient, as is an actual notice sent to each creditor.
If there is a surviving spouse with a statutory right to support, the personal representative will distribute these payouts, which could include the homestead exemption, the elective share, and support allowances.
After paying the surviving spouse (if applicable) and creditors, the next obligation to be paid is estate taxes.
After the above three steps are completed and a petition for final distribution is approved by the court, the personal representative may distribute the remaining assets according to the instructions in the will or to heirs according to the law of intestate succession.
Given the complexities and length of time associated with probate, it is typically in a beneficiary’s best interest to avoid it altogether. Avoiding probate helps ensure that estate administration is handled according to the decedent’s wishes, skipping the probate process can save significant time and money.
While relatively small estates valued at under $184,500 can either avoid probate altogether or go through an expedited process, larger estates need additional planning to avoid probate. Fortunately, there are multiple options to accomplish this goal.
Some assets and accounts can be set up to include payable-on-death (POD) or transfer-on-death (TOD) clauses. When this happens, a beneficiary receives access to the asset with little to no follow-up paperwork (other than providing a death certificate). Bank accounts and IRAs are examples of accounts that can include these clauses.
Establishing a living trust can provide several advantages, including avoiding probate.
A living trust is similar to a will, but the person can assign themselves as the trustee and maintain access and control of the assets while they are still alive. Upon passing, a successor trustee receives control over the trust.
Assets in a living trust typically do not go through probate in California and can include:
The law does not require you to hire a probate attorney, but it can save you time, money, and mountains of stress. While some areas of law, like small claims or family law, are somewhat easier to navigate, probate cases are very confusing (even to attorneys who don’t handle probate!) There are several legal regulations to follow, and the process is often exceptionally lengthy. In California, the average length of probate is over a year. We do our best to shorten the process as much as possible for our clients.
The amount of work involved in the probate process is overwhelming without a legal background, and probate attorneys are more adept at moving the process forward efficiently without mistakes or omissions that can further delay or halt the process.
If you have questions about a will or trust or need assistance navigating the complex probate landscape, contact The Werner Law Firm for help. Our law firm has 48 years of experience helping families with estate planning and probate.
We provide free initial consultations, so please don’t hesitate to get in touch with us by booking a call now.
23 Corporate Plaza Dr., Suite 150
Newport Beach, California 92660