What Is Probate Litigation, Anyway? - Werner Law Firm
What Is Probate, Anyway? | Werner Law Firm

What Is Probate, Anyway?

Probate comes from the old Latin and English for proving, giving a big clue on what the process is meant to do. A probate process illuminates the contents of a last will and testament and proves them, legitimizing the will and authorizing its execution at the hands of a capable and court-appointed estate executor.

The probate process can cost a figurative dime, or a fortune. It can be straightforward and peaceful, or rife with arguments and constant bickering from various involved family members. Yet at the end of the day, all cases within a probate court eventually come to an end, after the estate has been successfully distributed, and all of the decedent’s outstanding debts and obligations have been taken care of.

Understanding the probate process is arguably the most important thing for anyone looking to educate themselves on matters of estate planning.

Steps of the Probate Process

In California, the probate process typically takes at least six months to a year for estates where an expedited probate process is not possible. The minimum time period of 4 months is set as per the deadline given to creditors to file a claim against your estate. However, due to the court’s workload, getting court dates can take much longer. On average, it takes about nine months to a year for an executor to complete the probate process.

As per every single US State, California has its own probate code, which largely follows the same template used throughout the 50 states of the US. Some things to take note of include the fact that, although the federal estate tax is in effect and is part of the probate process, California does not have a state estate tax anymore.

Besides that, the probate process generally follows the same format. It begins when your will’s executor files a petition for probate with the county court with a copy of your will and death certificate. From there, a probate case is created, and the appointment of an executor eventually made. Any responsible adult assigned by the will can be made executor, but in the absence of a competent choice, the court may assign someone else.

The probate process then goes through several steps to legitimize the will, and execute it.

A judge must first confirm and rule that the version of the will brought before the court is the most recent, final version in existence. From there, the court appoints an executor to get started with executing the will.

The next step in the probate process is to get the exact value of the estate, creating an inventory of all assets and properties and getting date-of-death values.

Once the value of the estate is finalized, the executor must collect any outstanding debts, and inform creditors that their time to file claims against the estate has begun. Finally, the executor must handle any tax responsibilities, including final income tax statements and the federal estate tax, if applicable.

The last step is distributing the estate to its rightful beneficiaries, as per the will.

How Probate Can Be Avoided

Probate can be avoided through alternative estate planning tools. For example, a revocable living trust allows you to pass property and assets onto your beneficiaries after you die without having to go through the probate process at all.

Unlike a will, which only goes into effect once you are dead and requires a special court to legitimize and execute its contents, a trust goes into effect the minute you decide to sign and notarize a trust agreement, and the paperwork there is solid enough that probate does not become necessary anymore.

With a will, you are assigning beneficiaries to your properties and assets. With a trust, you are changing the ownership of your properties and assets, so they become a part of the trust rather than being in your own name. The trust owns the estate, so to speak, and as long as you are in control of the trust, you are in control of its contents. Unlike a will, there are far fewer limitations regarding what you can put into a trust – for example, you can transfer your partial ownership over a jointly owned property into a trust.

Trusts are more complicated than wills, seeing as how you have to go over every single thing you own and fund it into your trust, which can take up quite a bit of time and require a lot of paperwork. However, this lets you completely bypass probate for anything in the trust, making things far easier for your beneficiaries.

Why Estate Planning Should Matter to You

Many people falsely believe that estate planning is best left to those who are nearing the end of their life – but in truth, the best time to think about managing your own estate and preparing for the consequences of an untimely passing are when two simple criteria are met:

      • You own a home or something of substantial value.
      • You have beneficiaries or dependents to pass that value onto.

When a person dies without a will, anything and everything tied to their name legally and financially passes through a process decided by a state’s local intestate laws. Any debts they have will be settled immediately by their estate, and if what they left behind is insufficient to pay the debt and the estate goes insolvent, then typically said debt will be wiped out.

In some cases, creditors or debtors may come after the beneficiaries of a decedent, but if they cannot file a claim against the estate due to insolvency, they also typically cannot ask a beneficiary to take up the debt instead. However, if your estate has anything of value left after your debts are taken care of, then a very simple legal document can ensure that you decide where that value goes, and to whom.

Regardless of whether you decide to opt for a simple will, or a more complex albeit financially wise living trust, planning for your eventual death does not have to be a somber occasion. It is simple, basic financial planning – you are just ensuring that everything you worked for continues to benefit your family and loved ones after you pass on, and it would be incredibly unwise to leave that up to the state when you could make all the arrangements yourself, and control them to a greater degree.

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