Understanding The Probate
Process in California
Probate is required when a person dies with a will or without one if the value of their estate exceeds $166,550. If the value is less, the beneficiaries of a will or heir to an intestate estate can file a small estate affidavit with the court to avoid probate.
The initial step in the probate process is the executor’s filing of a Petition for Probate with the court. If there is a will, the executor will be named in it. If there is no will, the court will appoint someone to administer the estate. Once a hearing date is scheduled, the estate representative will provide a Notice of Petition to all heirs and beneficiaries.
The estate representative has multiple responsibilities, first and foremost protecting the estate and its assets until they have all been distributed. The representative must locate and inventory all estate assets, obtain copies of the death certificate, cancel credit cards and subscriptions, check the decedent’s mail, notify the Franchise Tax Board, notify the Social Security Administration if the decedent was receiving benefits, obtain a tax identification number for the estate, and prepare and file income tax returns until the estate is closed. Probate requires considerable work.
How to Avoid Probate
Having a will does not avoid probate. Probate is required to validate a will and make sure debts are paid and assets distributed as specified in the will. Wills are generally less expensive to create than a trust because they are less complicated; however, the costs associated with probate might exceed what you would have paid to create a trust.
A trust is effective during your lifetime. They are more complicated than a will because it requires the transfer of the title of all real property, vehicles, investments, insurance policies, etc., to the trust. If you put all your assets into a trust, they will be distributed as specified in the trust to named beneficiaries upon your death without requiring probate.
Work With an Experienced Probate Attorney
You can spend considerable time researching wills and trusts and attempting to figure out what you need to make sure your wishes are carried out when you are gone and how to avoid probate. Hiring an experienced estate planning attorney is well worth the investment. The attorney can assess your situation, including your assets and your wishes, and explore all options with you. Once you decide what estate planning tools you want to use, your attorney can guide you through the process and create the appropriate documents that will stand up to legal challenges.
Likewise, if you are the executor of an estate and overwhelmed by the required duties that you must perform, an experienced probate attorney can help guide you through the process. It’s often an emotional and time-consuming role that is more easily fulfilled working with someone who knows and understands the process and requirements that probate demands.