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The Whys, Whens and Hows of Probating a Will

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: September 27, 2017

In the state of California, there is no deadline for probating a will. However, that does not mean it is a good idea to delay the process more than is necessary. There are other deadlines to meet in the inheritance process, and understanding how time limitations work can save you a lot of trouble and can […]

In the state of California, there is no deadline for probating a will. However, that does not mean it is a good idea to delay the process more than is necessary. There are other deadlines to meet in the inheritance process, and understanding how time limitations work can save you a lot of trouble and can potentially save you from an awkward situation.

If by any means you find yourself in a situation where you have found your loved one's will, the first thing to do is contact a lawyer. It is generally in your best interest to begin the probate process as soon as possible. Some states, like Massachusetts and Texas, have specific deadlines for probating a will (3 years in Massachusetts, 4 years in Texas), although such deadlines may be waived if a judge decides it is appropriate to do so.

In California, a will must be presented by the custodian of a will within 30 days of learning of the death. Otherwise, the person responsible for keeping the will risks losing their rights as executor of the will, thus putting the estate in the hands of the probate courts and California law. One way or another, probate can be tricky business.

How the Probate Process Works

Probate involves proving that the contents of a will are accurate – and that, ultimately, the deceased’s last will and testament is legitimate. Over the course of probate, the probate court will see to it that your debts are paid (with your assets) and that your will, if it is deemed legitimate, is honored.

Typically, if the custodian or executor of a will files for probate within the given deadline then they are ultimately responsible for executing the will. After filing a petition for probate and successfully getting appointed as executor, they must temporarily take over the deceased’s assets and take on the task of distributing property, paying outstanding bills and debts, and taking care of other items detailed in the will.

Even with a comprehensive will and a cooperating family, the average probate processing time takes about a year. It is also beset with costs, from filing costs to hiring an attorney to assist in the situation and provide legal advice. If someone decides to contest the will, then the process is made even longer as the court reviews the evidence and tries to determine what the deceased really wanted.

There are benefits to probate. For one, the probate process creates a forum wherein, through the most official capacity possible, every beneficiary of the will can come together to argue and dispute and compromise over the estate and defend their position of how the estate should be distributed. This provides the most final and authoritative discussion platform on how the estate should (and ultimately will) be shared.

Probate also gives creditors a chance to make claims against the estate, with the deadline for making such claims being relatively slim. In probate, such claims by creditors can also be disputed if they are controversial, and in some cases, they may even be deemed illegitimate if there stands to be a reason for such illegitimacy. If you are beset with fraudulent claims of debt, then probate will be the perfect chance for people to attack your estate and be rebuffed in the court of law.

Expedited Probate

Probate does not always take long. There are minimum values that an estate must meet to trigger a lengthy probate – in most states, and as per state law, there are simplified probate processes set up to expedite the legitimizing of a will - if an estate is under a total value of whatever the state’s current minimum happens to be. This changes from time to time, from state to state.

In Texas, for example, an estate that does not have any debts secured by real estate property can transfer its property to beneficiaries through a muniment of title process. In Florida, estates below a certain dollar value are eligible for “summary administration”. In the state of California, an estate’s executor may simply request for a simplified probate process, which would cut out many of the miscellaneous tasks necessary in the probate process, instead of freeing an executor up to immediately distribute the estate to its rightful beneficiaries.

However, beyond a certain value, it may be of interest to you to find ways to entirely avoid the probate process rather than put your family through the pain of waiting months or years to receive a fraction of what you left them in the first place.

Probate Is Avoidable

Probate is not always necessary when tackling inheritance. A living trust, for example, is undoubtedly legitimate and irrefutable and gives you a great amount of control in distributing and provisioning your assets among your beneficiaries. It comes with its own host of complications and challenges, but for larger estates especially, a living trust is the way to go. Just like with a will, it’s advised to seek out a legal professional before starting the paperwork for a living trust. They can help you find the quickest and most efficient way to set up your trust, and ensure that what you own makes its way into the hands of your loved ones when you pass on – all while avoiding the troubles of probate.

However, this does not affect property and assets not covered by your trust. There are still cases wherein anything you own that has not been declared in your living trust finds itself needing a spot in your estate plan. That is where a pour-over will becomes important. This is a document that ensures that any assets and properties excluded from your trust at the time of your death find its way into your trust, and thus, into the hands of your loved ones.

This process still involves probate, but it is a much smaller nuisance than writing and executing a will for the entirety of your estate. You can explore further estate planning options and go through a detailed explanation of how to tackle the distribution of your wealth after your death with a legal professional in California. State laws are subject to change at any given moment, and legal advice is best taken face-to-face, especially on matters as important as your future estate.

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