No matter the circumstances, losing a friend or family member comes as quite a shock. When you reach out to their family, you share your grief, memories and worries about the future. And then they mention how they must begin the probate process to distribute your loved one’s assets.

Perhaps your loved one wanted you to have their old piano since you shared a love of playing. Now, you are not sure what to do. Did they remember you, and include that in their will?

Is there a way to find out if you are to inherit?

This is a common question many people have when they face probate – especially if they were particularly close with their loved ones, such as a grandparent, aunt, uncle or even a close family friend.

There are a few ways you can find out if a loved one named you in their will, including:

1. Asking the testator: Long before this, you can ask the testator – or your loved one who created the will. In many cases, your loved one might also inform you that they included you in their will before they pass.
2. Asking the executor: When an executor petitions the Court for admittance of the Will to probate, a copy of the Will must be given to anyone who is named in the will as a beneficiary, heir, or executor. Additionally, the executor must also provide information about the administration of your loved one’s estate. However, not all estates have enough assets to qualify for the probate process and will not be submitted for probate. In that case, you can always ask the executor or other family members of your loved one as well about the process.
3. Checking with the court: You can also check with the appropriate California probate court. Wills in probate are often public records, and you have a right to see the will – or at least a copy of the will. This could be an option if you have not yet received notification from the executor, or perhaps if you are unsure whether your loved one included you in the will or not.

It is not uncommon for probate to take time. On average, the process can take nine months. It all depends on the circumstances of your loved one’s estate. Unfortunately, budgetary and other conditions of the Court may also impact the resources of the Court and may increase the time to complete the probate process.  You should receive a notification if you are a beneficiary, but it still might take some time before you know if, or what, you will inherit.

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In a recent blog post, we discussed the purpose of the probate process. One of the primary purposes is to ensure the will is valid before moving forward with paying your loved one’s debts and administering their estate.

This is a usual part of the process, but many people wonder: how exactly can you – and the probate court, for that matter – confirm a will is valid?

How do you prove the will is authentic?

As you may know, a valid will under California law must meet a few particular conditions:

• It must be in writing, whether typed or handwritten;
• Your loved one – the testator – must have signed and dated the will; and
• The will must also have the signature of at least two witnesses.

If your loved one’s will meets all of these conditions, then you can feel fairly confident that the will is valid, though an experienced probate attorney can also help confirm this.

Even if you determine that your loved one’s will is valid, it is still routine for the court to examine the will and establish whether it is valid when you file your loved one’s will with the probate court.

So, how do probate courts authenticate a will?

The probate court generally relies on the witnesses to affirm the will is valid. Of course, the will must meet all of the conditions to be valid, but witnesses serve as a living testimony that your loved one was of sound mind when creating the will.

Usually, a will includes a form with the witness’s signatures – this is commonly called the self-proving affidavit. You should provide this form with the will to the probate court to assist in the authentication of the will.

If there is no self-proving affidavit, witnesses may have to come forward and provide an official statement that they witnessed the signing of the will to authenticate it.

Why is this important?

Proving the will is authentic is a critical step for several reasons, but the primary reason is to officially recognize that the will is valid under the law.

It is also important since you want to protect your loved one’s legacy and fulfill their wishes. And authenticating the will is a necessary step to do just that.

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In the estate planning process as well as probate, it is common to hear the terms “heir” and “beneficiary” thrown around and even used interchangeably.

However, there is a difference between these terms, and it is critical to recognize that difference.

What do these terms mean?

The important distinction between these terms is:

• An heir is someone related to the deceased by blood. This includes an individual’s spouse. Even if someone is legally an heir, they might not be listed specifically in the will; and
• A beneficiary is an individual specifically listed in a will, trust or even an insurance policy to receive assets. Beneficiaries can be a family member, friend or an organization. Therefore, a beneficiary of a trust very well might be someone’s heir, but that is not necessary. In some cases, an heir (including a spouse or child) can be omitted altogether in a will or trust.

For example: As a son or daughter, you are your parent’s heir automatically under California law. You become their beneficiary if your parent lists you in their will or in a trust to receive property or financial assets after they pass away.

Why should you know the difference?

If your parent establishes an estate plan, the difference between heir and beneficiary will not likely impact you significantly. However, it is most critical to understand the difference in these terms if your loved one passes away without a will.

When someone passes away without a will, the law states that they pass away intestate. This means that without a will directing how to distribute their assets, the probate court will distribute the estate according to California’s intestate succession laws.

Intestate succession is complex. It is often beneficial to consult an experienced probate attorney to understand the details of intestate succession, but it generally depends on your family’s circumstances – and who your loved one’s legal heirs are. In these situations, it is the heirs-at-law who inherit assets from the estate, including your loved one’s surviving spouse and their children, and in some cases their parents or siblings. With no will, there are rarely any beneficiaries in these situations.

There are many elements of the estate planning and probate processes to understand, but the more you know as you move forward, the more you can prevent confusion and stress while you protect your loved one’s wishes.

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The probate process can be very stressful. After losing a loved one, it is difficult to go through and distribute their property. The process is not easy, and the emotional stress is also the reason that there is a high risk of disputes in probate.

During probate, disputes can arise out of many elements involved in the process. So, how can families avoid or mitigate potential disputes?

1. Identify potential issues

Whether you are the chosen executor of your loved one’s will, their surviving spouse or their child, it is helpful to pinpoint issues that could develop into disputes before the probate process even begins. For example:

• Is there a long-standing sibling rivalry between your loved one’s children or their own siblings?
• Did siblings disagree over the care that their parent received at the end of their life?
• Is there a family member who is prone to arguments?

While these issues might not become serious disputes, it is critical to identify them beforehand, just in case.

2. Communicate consistently

Before you enter the probate process, it is also helpful to proactively communicate with your family. This includes everyone, from your immediate family to your extended family. Include any heirs or beneficiaries listed in your loved one’s will.

You should ensure the whole family is aware of:

• Your loved one’s wishes;
• The responsibilities of the executor or personal representative of the estate;
• Rules for moving forward in probate; and
• How the executor and family will keep each other informed.

This communication should not stop once probate begins. It is essential to actively communicate with family members and stay on the same page throughout the entire process. Open communication can help prevent disputes or handle them effectively.

3. Understand your rights

Probate can be a complex process. So, understanding your rights – as an heir, beneficiary or executor – can help you move forward with confidence.

It is often helpful to speak with an experienced probate attorney to better understand your rights and how you can protect them during the process to prevent a dispute.

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Navigating the probate process can be complex for your whole family. Thankfully, your loved one’s estate plan can help make probate easier since it provides directions of your loved one’s wishes and gifts their assets to surviving family members.

However, you come to own so many things in your life, from real estate property to personal belongings. You may wonder: what will happen to any assets if the will does not specifically describe how to manage them?

They become part of the residuary estate

As the term “residue” implies, the residuary estate includes all of the assets left over after the executor of the will:

• Pays remaining debts on the estate;
• Pays administrative expenses and fees;
• Pays for funeral expenses;
• Distributes specific bequests to beneficiaries.

Assets left after these steps are considered part of the residuary estate. The residuary estate can also include assets designated to a beneficiary who previously passed away – if there is no direction on what to do with those assets otherwise.

A will rarely covers every asset an individual owns. That is simply not realistic. Therefore, if you and your family are facing probate and managing your loved one’s assets after they are gone, it is important to be aware that their estate will likely involve residual assets.

So, what happens to these assets in probate?

Generally, there are two ways that the residuary estate is handled:

1. Distribution according to your loved one’s wishes: If there is a residuary clause in your loved one’s will that determines what to do with these remaining assets, then the executor will distribute the assets as directed in the clause.
2. Distribution according to intestate: If your loved one’s will did not include a residuary clause, those assets will still be distributed to heirs – they are simply subject to California’s intestate succession laws and rules.

When you and your family face probate, there are many details and elements regarding estate planning and probate to understand. It can all feel overwhelming, but it can help to consult an experienced probate attorney to help you through every step of the process.

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Probate often has a bad reputation.

There are a lot of myths that perpetuate that reputation as well. You may have heard people say it is expensive, time-consuming and stressful. On top of that, there are many sources out there advising people to avoid probate.

This can leave people wondering whether or not they have to go through probate at all.

It depends on the circumstances – not your choice

Whether or not your loved one’s will, property and assets must go through probate depends on your loved one’s circumstances. You do not usually get to decide.

Determining whether their property goes through the formal probate process depends on a few factors, including:

• The total value of your loved one’s estate;
• How your loved one owned property; and
• How they bequeathed property, through a will or trust.

Some assets and small estates qualify for a simplified probate process. However, the majority of estates must go through the probate process. Even so, you might still wonder why it is necessary.

So, what does probate do for you?

Probate is all about protection. The California courts describe probate as the process of:

• Determining that the will is valid;
• Confirming the executor;
• Finding all of the heirs and beneficiaries;
• Collecting and valuing all of the property; and
• Resolving your loved one’s financial responsibilities.

Therefore, it protects your loved one’s wishes, but also your family’s rights to inherit your loved one’s property. It is a legal and official process to transfer your loved one’s property while preventing fraud and preserving your loved one’s legacy.

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Nowadays, debt is a reality for individuals at almost any age. They go from paying expensive student loans to mortgages, all the while paying bills on various credit cards. This leaves the average American with roughly $38,000 in debt.

Debt may be a normal part of life now for you and your loved ones, but what happens to debt after your loved one passes away?

Debts are one of the first issues handled in probate

Aside from the overwhelming grief you feel after losing a loved one, you might also face new worries you never thought about before. For many people, one of the most common worries is who is responsible for paying any debts their loved one held in life.

Surviving family members do not have to pay their loved one’s debts in most cases. In fact, repaying debts from the estate is one of the first steps of the California probate process.

It is the personal representative or executor’s responsibility to send a notice to creditors and repay any outstanding debts in your loved one’s name, such as:

• Medical bills;
• Mortgage payments;
• Credit card bills; and
• Other remaining loans.

The personal representative named in your loved one’s will must do this before they can administer the assets of the estate to any beneficiaries.

In some cases, the personal representative might be held responsible for a debt if they do not send the notice to creditors or pay an outstanding debt from the estate’s funds. This is rare, but that is why it is often beneficial for executors and personal representatives to consult an experienced probate attorney to avoid these liabilities and risks.

Co-owned debts are another story

However, surviving family members may be responsible for their loved one’s remaining debts in a few cases, including:

1. If the debt is attached to community property; or
2. If they cosigned a loan with their loved one.

The most common example of this is spouses sharing a joint credit card account. The surviving spouse is still responsible for paying the credit card bill, even if their spouse incurred the debt.

Debt can be a stressful issue to deal with, especially on top of losing a loved one. However, understanding how the probate process handles debt can help reduce your family’s worries.

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In past blog posts, we discussed the important duties individuals have when chosen to be a trustee. Trustees of a special needs trust (SNT) share these same responsibilities, but they also have additional duties to meet the needs of the beneficiary of an SNT.

For example, the trustee of an SNT must ensure that their loved one – the beneficiary of the SNT – remains eligible to receive the public benefits they depend on. After all, the purpose of the SNT is to supplement these benefits, not replace them.

So, what steps can trustees take to protect their loved one’s eligibility for benefits?

Public benefits have specific requirements individuals must meet

Individuals with special needs can obtain essential public benefits, including Supplemental Security Income (SSI) and Medicaid, to support their needs. However, these are also two complex systems.

For instance, the Social Security Administration requires individuals to meet certain criteria to qualify for SSI benefits. One of the factors is that individuals earn a limited income. If beneficiaries were to receive or use assets from an SNT directly, it might disqualify them from getting the benefits they need.

That is why trustees are responsible for handling the funds from the trust on behalf and for the benefit of the beneficiary.

Trustees must understand SSI and Medicaid regulations

It is also up to the trustee to ensure the beneficiary of an SNT continually meets the other criteria of these benefit programs, so they continue to receive benefits. Therefore, the trustee must:

• Learn the regulations of both these systems;
• Understand how these programs work; and
• Distribute the assets of the trust accordingly.

Trustees will have to report to both Social Security and Medicaid about their loved one’s income and eligibility. Therefore, they must be well-versed in how these systems work.

SNTs often have instructions to protect the beneficiary’s eligibility. And trustees can also obtain assistance from an experienced California attorney to protect the rights of the beneficiary.

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It is true for almost everyone that their retirement is one of the largest assets they own. Throughout your entire career, you contribute a portion of your income to your retirement.

Nowadays, many people worry they might not have enough saved to last their retirement. On the other hand, some might worry about what will happen to all the assets they saved if they do not use it all before they pass away.

This might lead you to wonder what will happen to your retirement funds in the probate process.

Retirement assets may not have to go through probate

Contrary to popular belief, not all of your assets will have to go through the probate process. Only specific assets are included in the probate estate, for example:

• Most real estate properties and vehicles;
• Business interests or stocks;
• Bank accounts; and
• Tangible personal property, such as artwork or furniture.

However, there are several non-probate assets as well that operate based on beneficiaries. Retirement benefits fall into that category.

Beneficiary designations take precedence over wills

Many retirement benefits specifically include a beneficiary designation. It is built into the benefits program that the assets will be transferred to the listed beneficiaries upon the death of the individual. This process usually applies to:

• 401(k)s and 403(b)s;
• Pensions;
• Independent retirement accounts (IRAs);
• Life insurance plans;
• Payable-on-death accounts; and
• Real properties with a “Transfer on Death” Deed or held in joint tenancy with a living survivor.

In the probate court, beneficiary designations trump any wishes in a will. For example, if someone states in their will that a disinherited child should not receive any retirement assets, that child might still obtain those assets if the individual does not change their beneficiary designations on the retirement account itself.

If there are no beneficiary designations, or if your designated beneficiary dies before you, then your retirement account may become subject to the lengthy probate process.

This is why it is critical for you and your family to understand which of your assets are non-probate assets. And you must ensure your beneficiary designations are in line with your wishes. That way, your family can avoid running into confusion and complex issues in the probate process.

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Losing a spouse is a heart-breaking, traumatic experience. When you depend on your life partner for years, it is a great shock to face the idea of a future without them.

On top of that grief, you also have to deal with the confusing and often overwhelming probate process. This process can be even more confusing if your spouse passed away without making a will. Then you might wonder: how will you divide your spouse’s possessions without a will?

How you owned your property matters

The property you shared with your spouse, including your home, pieces of jewelry and family heirlooms, holds many good memories for you. It is natural to worry about keeping this sentimental property after your spouse passes away. You might also worry about the valuable property and finances your spouse left behind, and how that impacts your financial situation.

So, what happens to the property your spouse owned, as well as the property you shared after they pass away? If they did not make a will, then their property and estate will be distributed through intestate succession.

In these cases, under California law, how you distribute property often depends entirely on how you owned the property:

1. Community property: In intestate succession, you will almost always obtain your spouse’s portion of the community property you shared. This includes a wide range of assets, including your home, their income, any business investments they owned and other assets you acquired during your marriage.
2. Separate property: Although you usually are the first to inherit assets from your spouse, other family members may have the right to inherit your spouse’s separate property as well. For example, if you and your spouse had two children, then the separate property might be divided equally between the three of you.

Understanding how community and separate property work in intestate succession is important to help you through this stressful process. However, this is only a brief overview. Intestate succession is often more complicated than it seems.

It is often beneficial to consult an experienced attorney to understand the process, help you and your family move forward with confidence and protect your spouse’s wishes.

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