The Moher Law Group has extensive experience in estate planning and probate matters, and can help you quickly and efficiently navigate your probate proceeding for a family member, or resolve probate issues that have arisen from a previous matter. Contact us today for a free consultation on your situation, and to have all of your questions answered.
Will Probate Be Necessary?
Probate isn’t always necessary. If the deceased person owned assets in joint tenancy with someone else, or as survivorship community property with his or her spouse, or in a living trust, those assets won’t need to go through probate. The same is true for assets held in a revocable living trust and accounts for which a payable-on-death beneficiary has been named. If possible, one should plan for administration of an estate before death, allowing for these common “probate-avoidance” actions.
Assets inherited by the surviving spouse or registered domestic partner can also be transferred with a streamlined procedure, using a document called a Spousal (or Domestic Partner) Property Petition. The probate court is involved, but the process is simple and quick. There is no limit on the value of property that can be transferred this way.
Other assets may not need to go through probate, either. If the total value of the probate estate (the assets that can’t be transferred to inheritors in one of those other ways) is small enough, probate won’t be necessary. Currently, the cap is $150,000. Inheritors can claim the assets with a simple sworn statement (affidavit) or can go through a streamlined summary probate process.
The Basic Probate Process
If probate is necessary, someone must come forward to start the process. If there’s a will, the executor named in the will should get the ball rolling. If there’s no will, or the person named to serve as executor isn’t available, then usually a family member asks the court to be appointed as the “administrator” of the estate. It’s the same job.
The executor’s job will probably last six months to a year. First, the executor files the will, along with a document called “Petition for Probate,” with the probate court in the county where the deceased person lived. There is a filing fee of about $400; some counties charge a bit more. Some other forms may need to be filed as well, and formal notices given to interested parties. The will, if there is one, must be shown to be valid; usually this is done by having the witnesses sign a sworn statement that’s submitted to the court. When everything is in order, the court issues “Letters Testamentary” or “Letters of Administration,” appointing an executor and granting that person authority over estate assets.
Once the executor has this authority, the process of gathering the deceased person’s assets can begin. It’s also the time for the executor to get organized, set up a filing system so that benefits and bills aren’t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile, and file with the court, an inventory and appraisal of all probate property.
If all this sounds overwhelming, remember that it doesn’t all have to be done at once. It does involve a lot of paperwork (and usually, phone calls), but most well-organized and conscientious people can handle it. And the executor can always get help, from family members or from an attorney who understands the process and can serve as a guide.
Most probates in California are handled under the state’s Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court. (Cal. Probate Code § 10400 and following.) The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts—for example, selling real estate—require court approval.
During the probate, it’s the executor’s job to keep all assets safe. For example, a house must be insured and maintained; heirlooms must be safeguarded from theft or damage. The executor is also responsible for filing tax returns for the deceased person and for the estate.
In California, creditors have four months to come forward with their claims. Many estates don’t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example). If there isn’t enough money to pay valid claims, however, state law sets out the order in which claims are to be paid from estate assets.
Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That’s when the executor can distribute all the estate assets to the people who inherit them.
Other Probate Issues
The probate process is a minefield for potential issues, conflicts, and arguments over the division of property. It is essential to have information from the beginning, if possible, to make the process run smoothly. Contact us today to create a California probate plan and to have all of your probate questions answered.