Estate planning may at times feel like an intimidating subject and there is little wonder why. After all, it requires a person to think and plan for the time they are no longer around – and this is a thought many find challenging to come to terms with. Still, most adults realize at some point in their lives that having an estate plan is a prudent way to secure both their legacy and the financial needs of their family members after their passing.
However, preparing a solid estate plan may be challenging yet for another reason – it requires a good understanding of the laws, issues, and regulations. These may often seem complicated to say the least. In this post, we will tackle an important issue that some say is the most complicated aspect of estate planning – the probate process.
What Actually Is Probate?
The meaning of the word probate is two-fold. In its most general sense, it refers to the process of transferring the assets and liabilities of a deceased person to the beneficiaries assigned by the means of a will or through the laws governing inheritance. This process is usually supervised by a Superior Court. In a stricter sense, probate also refers to the initial part of the whole process in which the court reviews a will in order to establish its authenticity and validity.
How Does Probate Start?
A will usually mentions a person whom the deceased has appointed to take care of their estate according to the wishes described therein. The first duty of that person is to file a petition with the court so that they can be officially recognized as the executor of the will. The court then schedules a special hearing and notifies anyone named in the will. During the hearing, the will is validated and the executor is officially appointed.
What Does the Executor Do?
The executor’s job begins after the will is validated. He or she is now responsible for gathering the deceased’s assets, taking care of any bills that were outstanding at the time of the estate owner’s death, and paying estate taxes (if applicable). If the deceased had some outstanding debts, there is a certain period of time during which the creditors can present their demands with regards to their repayment. In California, the limit for the creditors to file claims with the court is usually 60 days from the date they receive notice that the estate is in probate.
Once all of the estate’s assets are listed and all the financial liabilities settled, the executor must file a petition with the Superior Court to distribute the remaining assets to the heirs.
What If There Is No Will?
If a person dies without a valid will, the court will appoint an administrator of the estate. State laws provide a list of people who may be eligible to fulfill this role. An administrator will usually be chosen from the closest surviving family members of the deceased. The duties of the administrator are similar to the one of the executor. One notable difference is that, after bills, debts, and taxes are paid, the assets will be distributed to the heirs according to the laws governing intestate succession.
Does Probate Affect All Assets?
No. Certain assets do not go through the probate process. Of these, the most important ones include:
- assets held in joint tenancy
- assets held in a living trust
- retirement accounts
- marriage/community property
Can You Avoid Probate?
Because of a variety of reasons, many people prefer to take steps to prevent their estate from going through probate. This can be achieved thanks to good estate planning done with a help of an experienced lawyer. If you would like to know more about the ways to avoid probate in California, do not hesitate to contact us. Solan, Park & Robello are a trusted California law firm offering comprehensive legal assistance related to estate planning, probate and trust administration, trust and estate litigation, and more. We are pleased to offer a free 15-minute phone consultation with one of our attorney for all new clients.