Probate is a very common legal proceeding dealing with the assets of a person who has passed away. However, many people don’t know what “probate” actually means. It is the method used by the State to allow the transfer of assets and liabilities to the next generation. Sounds simple, right? The process can actually be quite complicated, especially when there are multiple conflicting interests involved or extenuating circumstances. If planning the probate process in California, it is important to be aware of the basics. A legal professional can help to walk you through the process according to your own unique situation.
What is Probate in California?
Probate is when a court supervises the transfer of the legal title of property from the estate of a deceased person to the beneficiaries. If there is going to be a probate hearing, then there will need to be documentation filled out and provided to the court. This means that there will be a court case that may deal with:
- Determining if there is an existing will and if it is valid.
- Determining the heirs and beneficiaries.
- Figuring out the value of the deceased person’s property.
- Taking care of the deceased person’s financial liabilities.
- Moving the property to the heirs and beneficiaries.
When there is a probate case, there is typically an appointed executor that will act as a personal representative to determine assets, pay off dues, and distribute the remaining estate according to the written will. This will all be done under the guidance of the court. The length of a probate case depends on many different factors. However, probate cases typically can take around one year to complete.
The Estate Representative
To begin a probate case, the first thing to do is to determine who will be representing the estate. If you have a written will, the executor of the estate will be mentioned in the will. However, if there is no written will, then different factors come into play. A small estate can sometimes lead to an informal estate representative being determined. If the case needs to go through the court system, then the court will determine an administrator.
Sometimes, without a written will, there are disagreements on who should be the estate representative. Usually, the relatives or friends closest to the deceased or those with the most responsibility will be the ones that should be the estate representative. However, conflicts of interest may still arise, which can lead to familial issues. Instead, talking to a lawyer may be beneficial to determine the estate representative.
Determine The Heirs and Beneficiaries
Heirs are actually different from beneficiaries. An heir is someone who has the right to inherit valuables or assets after someone dies, without them having to leave a written will. Beneficiaries are those that are able to inherit due to a will. The beneficiaries or heirs can be determined by:
- The written terms presented in the will.
- California state law.
- Utilizing other estate planning documents, such as trusts.
While this sounds straightforward, determining who the heirs or beneficiaries are can actually be a complicated process even if there is a written will. Many factors could come into play. For instance, the person that passed away may not have updated their will for some time. They may be missing key people in their lives due to not updating their will. An estate planning lawyer that specializes in probate cases can be beneficial during these times to help mitigate any issues.
When Does Probate Apply?
Probate is required when a person passes away and leaves a will. Probate will then be needed in order to implement what is written down on that will. The process can also be required if someone passes away, does not have a will, and has property that falls under the law of inheritance. This also applies if the person who passed away has a person named as a beneficiary but that person has also passed away. The court will need to be able to pass along those funds.
Can You Skip Probate?
People sometimes don’t want to have to go through the court proceedings to probate a will. Who can blame them? There are not any requirements that say a will needs to formally go through the probate process. However, failing to go through probate could mean that the beneficiaries never obtain legal rights to the property or assets. There are many different instances that could determine this, so it would be important to speak with a legal representative to determine your unique situation.
How Can I Avoid Probate in California?
Careful planning can help you to avoid probate altogether. Many people seek to avoid probate, as this can help with reducing future legal fees and avoiding estate tax. Probate can also sometimes cause records to become public. So, if someone does not want some of their records becoming public, then they may want to attempt to avoid probate.
- Living trust. This is one way that someone can attempt to avoid probate, as assets would be placed into a trust. When the person who created the trust has passed away, assets are then given to that trust’s beneficiaries. No probate typically is necessary due to the documentation within the trust.
- Life insurance. If you name someone on your life insurance policy, then they will receive the benefits without the probate process due to prior documentation. This allows property to pass without probate.
- Retirement accounts. Some, but not all, retirement accounts can allow passage outside of probate. Once the owner of the retirement account passes away, the person who was named the beneficiary of that account will receive the balance.
Schedule a Consultation for Professional California Probate Advice
Estate planning and the probate process can be full of necessary documentation and complicated terminology. The probate process can be long and emotionally taxing, especially when dealing with the loss of a loved one. At Galanti & Copenhaver, Inc. we treat every client as an individual. This is because we understand that each client has unique circumstances and deserves a professional individualized approach. Our team is dedicated to helping you navigate these complex processes. Call today to schedule an initial consultation.