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What is Probate?

| Aug 7, 2020 | estate planning

The term probate is one that comes up often in the course of estate planning. Probate refers to the court proceedings and process in which a person’s estate is settled. In many cases, when a person dies, their estate must pass through probate in order for their assets to be properly distributed to their beneficiaries. However, with some forms of estate planning, the probate process can be avoided entirely.

California Estate Planning Attorneys

The estate planning attorneys at Galanti & Copenhaver, Inc. can assist you with the probate process and help you with any other estate planning needs. Our attorneys have many years of experience and are familiar with the legal issues associated with the probate process. Contact our office today to schedule a consultation to meet with one of our estate planning lawyers.

What Does the Probate Court Do?

The first stage of probate court is where the court determines if a will exists and if it does, whether or not it is a valid will. Next, the court will determine who the decedent’s heirs and beneficiaries of the estate are. The decedent is the person who passed away, leading to the probate proceedings for their estate.

The court will also determine how much the decedent’s assets and property are worth and resolve some of the decedent’s financial responsibilities. Finally, the case will conclude, and the decedent’s property will be distributed to their heirs or beneficiaries in accordance with the judge’s rulings.

While this may seem like a few easy steps and a simple process, that is not always the case. Probate proceedings often take at least a year to conclude, and sometimes much longer than that.

Initiating Probate Proceedings

At the beginning of the process, someone will be given the role of the representative of the estate. The representative of the estate has the responsibility to manage the estate property and assets until they are properly transferred to the beneficiaries at the conclusion of the case. If the decedent passed with a valid will, then the representative of the estate will be the executor that was named in the will. 

With small estates, it may be possible to avoid probate or go through a streamlined probate process under certain circumstances. If the matter requires a formal probate court case, the court will appoint an administrator to serve as the estate representative.

There are also certain types of property and assets that do not need to pass through probate. For example, if a couple owns a house in joint tenancy, and one spouse dies, then the surviving spouse will own the house without having to deal with court proceedings.

The Role of the Estate Representative

The person serving as the estate representative has many duties and tasks to complete. They will need to file the will with the court (if a valid will exists) and file a petition for probate. This will initiate the probate proceedings.

The estate representative is responsible for taking inventory of all property and assets within the estate. They also have the responsibility to figure out who the decedent’s heirs and beneficiaries may be, and then must notify them.

He or she will also need to obtain a certified death certificate, as well as collect the decedent’s mail, check safe-deposit boxes (for any valuables or important documents), cancel credit cards, and handle other tasks of this nature. The estate representative will also need to file the decedent’s final tax return.

Creditors and Probate 

Creditors may come forward with their claims against the estate within a four-month period. In many cases, there may not be any formal claims from creditors—instead, the executor or estate representative will just pay any outstanding bills. In a scenario where there is not enough money in the estate to pay all of the valid creditor claims, California law determines the order in which the claims must be paid.

What Happens if There Is Not a Valid Will?

If the decedent did not leave behind a will (or it has been deemed invalid), then the California intestate succession laws will determine who the beneficiaries are, and what portion of the estate assets they will receive. The intestate succession laws dictate the distributions for a number of different scenarios.

For example, if the decedent was married but had no children, then their surviving spouse will inherit the entire estate. If the decedent was not married and did have a child, then the child would inherit the whole estate. In this scenario, if there were multiple children, each child would inherit an equal share of the estate. Contact us today at (707) 867-0787 or fill out our online contact form to see how we can help you today.