There is no doubt that the aftermath of losing a loved one is overwhelming. You and your family may struggle with complex emotions – but will you have to navigate a complex legal process as well?

In many cases, probate may be necessary in California to validate a loved one’s will and begin the administration of their estate. However, many families worry that probate is a complicated procedure. Is this true?

Answer? It depends

While there are rules to follow and steps to take in probate, the process is never the same. Probate can be complex, but it depends heavily on specific details in each case, such as:

• Details in the will: Does the will include clear instructions on how to manage and distribute property? Or does the will have ambiguous language that does not provide steps to follow? Clear information provided in the will can make a big difference.
• Assets in the estate: If the estate includes a wide range of assets – as well as complex assets – then the process of valuing and distributing them can take time. It may also require particular strategies and professional guidance to manage these assets.
• The size of the estate: In California, if the estate value is $184,500 or less, and your loved one made use of beneficiary designations, probate may not be necessary. However, estates larger than that often must go through probate with or without a will.
• Disagreements between family members: If beneficiaries and family members do not agree with the interpretation of the will, it could lead to will contests which make the probate process more complicated.

There are steps individuals and families can take to make the process smoother and to avoid probate. You can take time to create a custom, detailed estate plan that protects their assets and their families. If a probate is necessary, families can be sure to communicate and consider working with professionals to make it easier to navigate this process.

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One essential detail of creating a will – or any estate planning document – is testamentary capacity. Put simply, this means that the person who creates the will must have a sound mind. This aspect can come into question if a loved one faces a dementia diagnosis. Your loved one and your family may face an additional level of stress when it comes to estate matters. What are the options?

4 steps to take to determine validity

So, how can you and your family determine if their will is valid? There are a few steps you can take, including:

• Understand the timeline: Timing will be the key. When was your loved one diagnosed with dementia? When did they create the will? Was the will created by an attorney? Having proof of these dates will be helpful to determine if your loved one was still of sound mind when they created the will. However, even if a loved one was in the early stages of dementia, they may still have had the testamentary capacity to create a valid will.
• Get confirmation: You may be able to obtain medical records or speak with the doctor who treated your loved one to obtain a professional opinion of your loved one’s state of mind at the time they created the will. It may also help to speak with the witnesses who were present when the will was signed. After all, their role is to confirm that the will is indeed valid. This includes accounting for the testator’s capacity.
• Provide your own account: In addition to any professional opinions, the family’s eyewitness accounts can also help provide an accurate picture of the loved one’s state of mind. A doctor may be able to give a professional account, but the family’s account of everyday details offers a holistic view.
• Obtain professional guidance: If there are any doubts or questions, it is helpful to speak with a legal professional. They know the requirements of a valid will and can provide guidance if families have concerns about their loved one’s mental state at the time the will was signed.

These steps can help to understand if a loved one’s dementia affected the validity of the will in California. It is easier – emotionally and procedurally – to take steps before a loved one passes.

Seeing a loved one decline and dealing with their passing is unimaginably difficult. Navigating these legal questions and the administration of their estate on top of this emotional stress can be even more so. However, it is important to consider the logistical aspects to make sure you and your family respect your loved one’s wishes.

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The thought of probate can leave you and your family facing a lot of questions after the loss of a loved one. These may include (1) how does probate work; what needs to be done to start the probate process; (3) how long will it take; and (4) what assets are part of the probate and which assets are not?

In California, there are simpler procedures to transfer assets that do not require probate.  But first you want to know “what assets are not included in the probate process”?  It helps to consider the following to determine whether a probate is needed or whether a simpler process would work to get the asset to the right person (beneficiary/heir).

Are there beneficiaries listed?

Bank accounts, insurance policies, retirement accounts and some other financial accounts often list a beneficiary, or someone who will be able to collect those funds once the principal/owner of the account passes away.  If you are listed on one of these assets as beneficiary, the  institution will require a death certificate and your personal information.  If there are no beneficiaries listed, the assets may have to be probated.

Is there a trust?

Assets that are held by the Trustee of a Trust and have a named beneficiary in the Trust, the Successor Trustee will distribute the asset to that person without having to go through probate. However, there are specific rules for trust administration that the Successor Trustee will have to follows.

Who owns the property?

Let’s say a couple owns a house together and one of the spouses passes away.  The house will most likely not be a probate asset if (1) it is titled in the name of the Trustees (or Successor Trustee); (2) titled in the name of  husband and wife as community property, with right of survivorship;  or (3) tilted in the name of husband and wife, as joint tenants, with right of survivorship.  This may also apply to financial accounts or other assets that the couple owned together. To that end, assets that are held in  joint tenancy or have beneficiary designations are most likely non-probate assets.

So, what about everything else?

It depends.  If an asset is titled in the decedent’s name, without a beneficiary designation, it will most likely be a probate asset if the total amount of probate assets is $184,500.00 or above.

It is clear that probate can be a complex process, and it very much depends on your loved one’s estate plan and preparation, as well as the details of the  estate overall. No case is the same. That is why it is often beneficial to seek guidance from an experienced probate attorney to understand the steps of this process.

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Tax season is just around the corner. Many Californians are likely receiving their W-2s and other financial statements in the mail while preparing their strategies for April filing day.

However, your tax filings may look different if you experienced significant life changes this year, such as getting married, having a child – or losing a loved one. How might a death in the family influence your taxes? Here is some critical information to know and how it may affect you. It is only natural to focus more on working through your grief after losing a loved one then concerning yourself about tax matters. Unfortunately, there are deadlines to meet and you will have to attend to those as well.

If you received an inheritance from a loved one (either as beneficiary or heir), it may be a relief to know that neither California nor the federal government will tax that (excluding retirement and annuity accounts). Therefore, you will not have to claim it as income. If you inherit real property, you personally will no have to pay past due property taxes, but one the property is titled in your name, that will change.

The details may be different if you are the executor of your loved one’s will or administrator (“their personal representative”). While your inheritance is not considered income, your compensation as personal representative is a different matter. That is indeed taxable income.

What about your loved one’s taxes?

As we discussed in a past blog post, a loved one who passed within the last year technically still owes taxes. There are still tax filing requirements.

The executor or personal representative is responsible for filing taxes on behalf of the estate.

If you prepare your own taxes you know that can be stressful. If you decide to handle the tax matters of a loved one’s estate that will be even more so. There are more details and steps that the personal representative must handle. To that end, it is imperative to get informed and prepare yourself for this tax season.

As the personal representative it is helpful to:

• Follow your Probate Attorney’s advice
• Review the rules regarding filing requirements if you handle the estate taxes/final return yourself
• Gather/organize all financial statements/documents related to the estate for the attorney and CPA
• Seek professional guidance to avoid any mistakes

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When your family experiences a loss, it can rattle everything you know. The entire structure you relied on for years can feel unsteady. During this time, it is often your siblings that you have to rely on.

After all, you are all in the same boat. Even if you all had very different relationships with your late parent, you all lost a family member. So, how can you create a support system?

1. Be there for each other

This is the most important step to take. It might be difficult to reach out, depending on the details or history of your relationship. However, losing a parent can leave you and your siblings struggling with grief and a confusing array of emotions.

More than likely, you have your own lives and families now. It may have been a long time since you lived under the same roof. You may not even live in the same state anymore. Despite that, you should try to be there for each other. It can help to check in with each other regularly, even if it is through a simple text or phone call.

2. Prepare for emotions to run high

Each sibling is dealing with grief, but it is important to remember that it manifests differently for everyone. So, siblings might experience different “stages” at the same time. These contradictions can lead siblings to snap at each other and say things they do not mean.

3. Make a plan to manage disputes effectively

Conflicting emotions, planning a funeral and dealing with probate can also lead stress levels to run high. This makes it even more critical to take steps to avoid disputes. It can help to:

• Consider past family issues that could arise, and communicate about them
• Seek legal guidance to understand and manage California probate issues
• Work to stay true to your parent’s wishes

Avoiding disputes is easier said than done, even if you get along with your siblings. However, if you take time to prepare, you can prevent any conflicts from turning into disputes that affect the probate of your loved one’s estate.

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As you age, it is only natural to become more forgetful. It is only when this forgetfulness becomes more frequent or even dangerous, that it becomes a concern for you and your family. You might worry that this increased forgetfulness could be a much larger issue – dementia. Here are some important things to consider.

What are the symptoms to watch for?

Forgetfulness is not the only sign of dementia of which to be aware. There are many other, unexpected signs as well. According to the National Institute on Aging, some of these signs include:

• Regular bouts of confusion
• Challenges comprehending speech and speaking
• Sudden depression or anxiety
• Acting strangely or out of character
• Difficulty completing everyday tasks

As it is with any condition, the symptoms can be different for each and every person. You may not experience or notice all of these signs, but it is important to be aware of what your normal is, and when you start experiencing issues outside of that.

What if you notice these signs?

Being in denial about these signs – or the reality of dementia – is common. You may very well go through the stages of grief, and have feelings of fear that fuel your denial. This is all understandable. However, it is so important to obtain medical help as soon as possible if you notice these signs.

Arrange for official tests to diagnose dementia or Alzheimer’s disease. It can help to bring a trusted friend or family member with you for support and comfort.

Getting a diagnosis can be key to helping you move forward with potential treatment options. In addition to treatment, it can help you prepare for this unexpected future as well.

Another important step to take

If you suspect dementia or receive an official diagnosis, you should:

• Make sure your estate plan is updated and accurate
• Speak to your family about your wishes now

In the early stages, dementia may not have a significant impact. However, that is when it will be critical to take steps to protect everything you have built in California as well as your family’s interests. If you act quickly, you can avoid any challenges to your wishes based on your state of mind.

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If you have a will, it means that you must have two witnesses present when you establish it. This is a requirement, but this requirement serves a much larger purpose in probate. Here is the critical information you must know about the role witnesses play.

Why witnesses are key

Witnesses generally have two important roles:

1. They can assure that the person who created the will was of sound mind when they did so
2. They can provide statements to the probate court proving the will is valid

Proving that a will is valid is a critical step in probate – in fact, it is one of the first items on the extensive to-do list. Contacting witnesses can make completing this step much easier.

Of course, there are other means of proving the will is valid. For example, the California Probate Code specifically states that you can prove the validity of a will by comparing the handwriting of the witness, or perhaps even the creator of the will, to another sample.

So, choosing the right witness is essential

When crafting a will, it is important to be mindful when selecting a witness. This can help make the first, critical step of probate easier for your family as they navigate this tough process after losing a loved one. To choose your witness, it can help to:

• Consider the two roles above when making this decision
• Choose someone who is not going to inherit anything through the will

It will also help to include contact information for the witnesses and communicate directly with your family about your plan – and your wishes.

You do not have to overthink this choice too much. However, it is an important one to help make probate easier for your family.

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When a family member passes away, it is difficult to know how to move forward. Yet, it seems there are countless things you must do, often all at once. Among all the uncertainty, there are three important things you may wish to remember.

Do not avoid your emotions

Losing a loved one is one of the most difficult, stressful experiences you can face in life. The grief you feel may be overpowering, even debilitating. Many people might find it easier to suppress these complex emotions than actually feel them.

While working through grief is different for everyone, it will help to deal with these emotions directly rather than avoiding them. Obtaining professional mental health counseling to help navigate grief is recommended.

Begin probate

As we have discussed in previous blog posts, thinking about the probate process is the last thing you may want to do while you are working through your emotions. Even so, it is something that must be done. If the decedent’s estate is over $184,500, it involves the filing of a petition with the probate court after a loved one’s passing in California.

The person who files the probate is often the executor listed in the will. If there is no will, then someone must still complete this step to begin the formal probate process.

Depending on the details of your loved one’s estate, probate can be an extensive procedure. Just like it may help to seek professional guidance for your mental health, it can also help to obtain legal guidance to manage the tasks involved in probate.

Update your own estate plan

You may have to make changes to your estate plan after a loved one passes. For example, if your spouse who passed away had medical power of attorney on your behalf, you should choose someone new to be your representative if you become incapacitated.

Updating your estate planning documents and beneficiary designations may not seem urgent during this time. However, it is something to keep in mind and address with your attorney in the near future after losing a loved one.

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As you may know, probate is the process of proving if a loved one’s will is valid before beginning the administration of their estate or if a probate, without a will is required. There is often a lot of anxiety surrounding this process.

However, some people might wonder if probate is even necessary. To determine the answer, it often helps to understand when it may not be a requirement. Here are some of the critical factors that will determine if probate is not required.

The value of the estate

In California, if the value of your loved one’s estate is less than $184,500, then the formal process of probate may not be necessary. Of course, there are other details you must consider in these situations, as The Judicial Probate Branch of California explains, but the estate may qualify for a simplified process either via another type of petition or by completing other appropriate forms outside of court if the value totals less than $184,500.

The estate planning tools used

Perhaps your loved one specifically, strategically planned to avoid probate. For example, probate may not be necessary if he/she made use of:

• Trusts
• Beneficiary designations
• Changes to deed

These tools can pass property to beneficiaries directly. However, you or your loved one must prepare very carefully using these tools. It will help immensely to obtain experienced guidance to ensure there are no issues in the plan to avoid probate.

How your loved one owned property

If your loved one owned property jointly with a spouse or another family member, that may also mean that assets will not have to go through the probate process.

Regardless of whether you are creating an estate plan, you are faced with the question “is probate required,” or if you are managing the estate of a loved one who’s passed away, it helps to obtain knowledgeable guidance from a legal professional.

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One of a personal representative’s biggest tasks is reviewing their loved one’s estate and taking stock of the assets. This can be daunting, so here are some of the critical things you must know about this particular task during probate.

How long do you have?

You have four months to complete the inventory of your loved one’s estate after filing probate. That is roughly 120 days in which, according to California law, you must:

1. Compile a comprehensive list of their assets
2. Obtain the value of each item in their estate
3. File this inventory with the probate court

This time can pass faster than you think. It is critical to complete this process with care, to avoid mistakes and meet the deadlines. It is often helpful to seek legal guidance to assist you through this process.

What do I have to inventory?

It is not an exaggeration to say you must take inventory of everything in the estate. This includes, but is by no means limited to:

• Real estate property, including the decedent’s home as well as rental and/or any vacation properties
• Personal property, including furniture, vehicles, guns, jewelry and similar personal property
• Financial accounts, insurance policies and stocks

It is important to know that you must also take note of how your loved one owned the assets. Was it jointly owned with their spouse? Or did the decedent hold full ownership? This will be critical information for the probate court.

Don’t forget about debt

The debt your loved one owed is also a part of their estate – not just their assets. Therefore, you must also make sure you compile a detailed list of debts and creditors during this four-month period as well.

Taking a full inventory of your loved one’s estate can be a challenge. It will require you to be organized and pay close attention to detail. Navigating probate may be complex, but it is not impossible. It is often helpful to seek legal guidance to assist you through this process.

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