The good news is that not all estates are required to go through formal probate. Moreover, some assets bypass the probate process altogether. Given the repercussions that can follow making a mistake, you should always consult with an experienced probate attorney before reaching the conclusion that an estate is not required to go through probate. Probate is the legal process that is often required following the death of an individual.
Probate serves several functions, including:. The formal probate process is often a costly endeavor, both in terms of time and money. Because creditors of the estate must be given four months within which to file a claim, it generally takes a minimum of seven or eight months for even a relatively modest estate to get through the probate process.
Furthermore, the expenses involved in probating an estate can significantly diminish the value of the estate that is ultimately passed down to loved ones.
Fortunately, the time and expense of formal probate are not always required to distribute estate assets of a decedent in California. As a general guideline, the following situations may allow for assets to be distributed without going through probate:. If you have additional questions or concerns regarding the probate of an estate in California, contact the experienced Riverside estate planning and probate attorneys at Dennis M.
Sandoval, A Professional Law Corporation by calling to schedule an appointment. Our probate lawyers handle all types of probate matter in the probate courts of Riverside County and San Bernardino County. Dennis Sandoval is the only attorney in California who has certifications in the three areas of estate planning, elder law and taxation. All Rights Reserved. Inheritors can claim the assets with a simple sworn statement affidavit or can go through a streamlined summary probate process.
For more information, see " Probate Shortcuts in California. 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. Some other forms may need to be filed as well, and formal notices need to be given to beneficiaries, particular family members and creditors. 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 probate cases 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. 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 process, 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 all 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.
If you do it yourself, perhaps less, but it may consume a year or more of your own time. If someone contests a Will, or the beneficiaries otherwise disagree with a distribution, the costs will likely be much higher, and may take years to resolve. Instead, think of a Will as a kind of letter written to a probate judge, expressing the desires of the deceased. During probate, you present the Will to a judge, and the judge decides what actually happens.
To be even more clear, except with respect to assets clearly not subject to probate see below , you cannot simply read a Will and do what it says on your own, without a court process.
If you are not either a spouse or the valid Trustee of an estate, and you simply take possession of, say, cash lying around the house, or a car, or withdraw money from an account of the deceased, you could be prosecuted, even if you are the executor of the Will.
Some specific assets may be subject to distribution by the probate court, and some may not. For starters, any assets placed in a valid and signed! Living Trust before the death will not have to move through probate court — they can simply be distributed by the new Trustee, according to the terms of the Trust.
Similarly, life insurance payments do not have to move through probate, as they are paid directly to beneficiaries. Assets in banks and investment firms which have Payable on Death POD or Transfer on Death TOD beneficiaries clearly identified on paperwork at the institution where they are held can be transferred directly to those beneficiaries by the institution, with no probate.
Indeed, using PODs, most retirement accounts are transferred in this manner, outside of probate, even if a probate occurs. And of course, any assets or properties jointly owned by spouses can generally be claimed by a surviving spouse without probate. Assets not jointly owned are a different story, and probate will likely be necessary. As an example, your loved one may have left a Living Trust, but may have forgotten to re-title their house under that Trust. Or they may have neglected to properly list PODs on an investment account.
A full, formal probate will certainly be necessary. What happens if your loved one left a Living Trust, but an important asset was left out of that Trust?
You may have some recourse for avoiding probate on those assets, depending on the exact wording of the Trust itself. We discuss Heggstad and other circumstances under our article about Trust Administration. How to get to these goals? Start by reading our step-by-step guide, below. And again, if you get stuck or confused, please contact us about our Probate Representation services, or fill out the form on this page.
Here we will show you how to probate a Will without an attorney. But please realize that no article like this can take into account the many different personal circumstances, variations between specific courtrooms, changes in the law, and so forth. Use this only as a general guide to probate in California, and if you are not using an attorney to take care of your probate, contact the local court in the county of the deceased for full and local information.
Some, but not all, of the below language is taken directly from California Court documents. We have added many of our own clarifications to the official language. As an overall process, you are working toward two court hearings, widely separated in time, by A Getting all the documents and interested parties together for the First Probate Hearing, B Getting the authority to act on behalf of the estate at the first hearing, known as The Probate Hearing , C Taking control of the estate as the Personal Representative of the estate, D Creating a fair distribution plan and paying off debts and taxes, E Getting that plan approved at the second hearing, known as the Judgement of Final Distribution , then F Distributing the assets and closing down the estate as determined by the court.
Breaking it down further:. Along with the Petition, you will be given a goodly number of other forms to fill out, some of which will later be signed by the judge. You may want at least a brief consultation with an attorney at this point, to make sure you fill out these forms properly, and include all the necessary information about potential beneficiaries,, etc.
Discuss it with the judge. Along with delays on the part of the court nearly inevitable , a great many other events may slow the probate process. The most important, of course, is any objection by another party to the way you go about the process. Someone may object to you becoming the Personal Representative, someone may complain about your management of the estate, your accounting, the validity of a Will, or your plans for distribution.
All of these may lead to very lengthy court processes indeed, sometimes requiring years to resolve. Failure to hit any deadline, show up for a hearing, or respond to an inquiry from the court will certainly lead to unwanted and sometimes very lengthy delays of weeks or months. Be prepared. If you accept the job of Personal Representative, keep in mind that failing to perform your duty can lead to catastrophic consequences.
You may even have to pay for any damages out of your own pocket for problems you caused. You may, for example, be held liable for improperly managing the assets of the estate, overpaying creditors; failing to collect monies due to the estate; selling an asset without the authority to do so, or at an inappropriate price; not filing tax returns on time; distributing assets to the wrong people; distributing assets before creditors and taxes have been paid; and etc.
If you do not wish to handle any or all of the steps in Probate, CunninghamLegal is here to help. Indeed, we can take on the entire process as your attorneys, including representing you at hearings and handling all the paperwork—while keeping you informed at all times. Our lawyers are deeply experienced in even the most complex of probate situations, including amicably resolving probate disputes among siblings, heirs, and creditors.
You can complete probate on your own, but an attorney can make the process easier. How does probate work in California? Do I need a lawyer for probate?
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