Losing a loved one can be overwhelming. Not only are you experiencing loss, but there also tends to be a list of tasks for loved ones to complete.

If you are the named executor or the person that will handle the loved one’s affairs, in addition to making funeral arrangements, you may need to start the probate process. When you do not know what to expect, probate can seem like an intimidating process.

Here’s what you should know about probate and how long you can expect it to take.

What happens during probate?

In general, probate is the process of analyzing your loved one’s debts and assets and creating a plan for wrapping up his or her final affairs. Typically, probate includes tasks such as:

• Filing a petition with the court
• Creating an inventory of his or her assets
• Discovering his or her remaining debts
• Locating heirs (or beneficiaries if a will)
• Distributing assets according to the will or court order

Typically, one person is responsible for overseeing the probate process. When there is someone listed in the will, they are known as an executor. If there is no will, or the will does not name an executor, the court will appoint someone to be the administrator. The executor and the administrator have the same job; the difference is in how they were appointed.

How long does the process take?

The process can be fairly straightforward when your loved one’s will includes all the details you need for probate. However, the process can take significantly longer if there are unknown debts, missing beneficiaries or heirs, sale of real property or multiple locations involved (such as real estate in another state). Factors such as these can delay probate.

In most cases, California probate courts want the process completed within one year. However, when there are other considerations, you can get an extension to have more time to complete the probate tasks.

Probate can be a complex process and is typically not something you want to try to complete on your own. You should talk to an experienced professional about getting through probate.

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Creating an estate plan is a valuable way to prevent unnecessary legal conflicts and delays. However, even with a plan serving as a guide, distributing your property after you pass away can trigger fights and resentments among your loved ones.

Taking certain precautions can help minimize these potential issues and make asset distribution easier for your family.

Don’t confuse equal and fair

Dividing your property and financial assets equally among your children could seem like the most straightforward way to distribute your estate. While this could work in some cases, equal is not always fair.

For instance, if your estate is worth $300,000, giving each child $100,000 could make sense.

However, fights and resentments could arise if one of your children is already very affluent while another is struggling. Perhaps one of your children served as your care provider while another has been estranged for years. In these scenarios, leaving the same amount to every child can be unfair.

Before you opt for “equal” over “fair,” you may wish to consider individual elements like each child’s circumstances. Another example would be:  One child inherits a house valued at a Fair Market Value (FMV) of $450,000 (free and clear); and another child a house valued at $500,000 (with a $350,00 mortgage). This division is equal as to each child getting a house, but not equal as to the value. Again, is that fair?

Provide context

You have the right to make any decisions you see fit in your estate plan. After all, it is about your legacy.

That said, your decisions can be confusing, and others can misconstrue your intentions. And without you there to explain things, your family has little more than an estate plan to go on. Because of this, you might consider providing context for your loved ones.

Including statements that explain your decisions can help answer questions that would otherwise go unanswered.

Avoid painful surprises

You may have seen shows or movies where a will reading turns theatrical because of surprises left in the legal paperwork.

However, revealing shocking information in estate planning documents can potentially cause tremendous pain for your loved ones. Even if the surprise is ultimately good, people may not appreciate learning about something after you are gone.

Thus, leaving these dramatic revelations for daytime TV plots can be wise. 

Talk to your family

If one of your priorities is to prevent infighting and conflicts among those you love, talking to them ahead of time can be crucial. Having an honest conversation about your wishes gives you a chance to get feedback, address concerns and make adjustments to your estate plan before it is too late.

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People often want to leave a lasting, positive legacy when they are gone. This legacy can stretch beyond loved ones to charitable organizations and – increasingly – the environment. A small but growing preference for people regarding their final arrangements is to have a green burial.

What is a green burial?

The term “green burial” refers to measures that reduce the negative impact that final arrangements can have on the ecosystem. 

Traditional arrangements can be environmentally taxing. For instance, cremation releases significant carbon dioxide and contaminants into the air, while embalming involves toxic chemicals. Additionally, the land and water demands that go with maintaining burial plots can be enormous.

Green burial solutions aim to reduce the toll these measures take on the environment. Depending on where you live and what your personal beliefs are, some of the green burial options you might consider could include:

• Burial suits that sprout mushrooms during decomposition
• Burial pods that eventually grow into trees
• Burial in a conservation burial site
• Biodegradable urns or caskets
• Water cremation

One state even permits human composting.

If these options appeal to you, know that they are not standard arrangements. As such, if you do prefer this green approach, saying as much in your will and estate plan is crucial. Do not wait until it is too late to express your wishes. 

Protecting your wishes

Start now by researching the options available, as well as the cost. You can then start to save and set aside money to cover the cost of a green burial.

Making the decision now allows you to express your preference to trusted loved ones, including your spouse, children and family attorney. Communicating these wishes through your estate plan gives you peace of mind that others know what you want.

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Wills are some of the most common estate planning documents. However, if your family cannot find the will after your loved one passes away, it can pose a real challenge.

As we discussed in Part One of this series, Californians cannot file a will with a court before death. This applies to either a handwritten will or a typed will prepared by their attorney. Therefore, one must generally leave instructions on where your family or named executor can find the will.

Trying to find a will without any instructions can be incredibly challenging. Imagine your family rushing to search for a will that may not even exist.

Trusts may be easier to find than wills

Trusts, however, have somewhat different considerations and may be easier to be found than wills. Even if there are no specific instructions informing you that a trust was prepared by your loved one and there is no information about where the trust may be or who prepared it, there may be ways to find out if a trust was prepared and hopefully a signed copy can be found.

For example, if the decedent had real property, it is possible to search local property records by entering the address of your loved one, or his or her name, to find out if he or she was holding title in his or her own name as trustee of his/her trust. The deed my show the name of the attorney who prepared the trust transfer deed, and you can contact the attorney’s office to see if you can obtain a copy of the trust. The notary information may also be helpful.

Searching public records under the decedent’s name may help to locate a trust. For example, if the trust earns income in any way, the successor trustee may have filed a trust income return with the Internal Revenue Service (IRS). The history of these reports and records may help families locate the trust.

Trust administration might be easier as well

Most trust administration is a much quicker and easier process than a probate matter is. A probate must be established if the decedent’s assets held in his or her name at death without beneficiary designations are greater than $184,500 in California (will or no will) and the probate matter may take several years in court.

It is important to fully understand the details of trusts, and how a trust may benefit you and your family. With property transferred to the trustee/successor trustee of your trust, the trustee/successor trustee will administer the real property during a loved one’s disability and distribute the trust assets to the trust beneficiaries, within a short time period, unless the trust provides for a specific (longer) length of time.

Meanwhile, any real property, or other assets in the decedent’s name alone, will have to go through the probate process to transfer ownership via court order. That is why trusts are often a tool people use to avoid probate. And if families cannot find the will, a properly funded trust will avoid probate via intestate succession.

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Many families will begin the probate process not long after losing a loved one. The law requires the person holding the will to file it with the probate court within 30 days after death.

However, the first step is to find the will. If your loved one did not leave behind any instructions about where to find it, this is often easier said than done.

Where would a will commonly be?

In California, individuals cannot file their will in advance with the local probate court. So, you will not find the original will or a copy at the probate court.

However, there are other common places where individuals frequently store their wills and other estate planning documents, including:

• A safe deposit box
• A safe or lockbox within the home
• Locked drawers or filing cabinets
• Their attorney’s office

Perhaps you know of odd places your loved one stored other important documents or even money, such as in the pages of a particular book on their shelf. It is worth looking in those locations as well.

What if you still cannot find it?

Sometimes, the will gets lost among other documents. In other cases, it might not have existed in the first place. Regardless, there are times when family members simply cannot find their loved one’s will. In these cases, then your loved one’s estate will be subject to California’s intestate succession laws. This generally means:

1. The law will determine who the executor or representative of the estate will be
2. The estate will be distributed based on these laws, and not necessarily how your loved one wanted it to be

There are ways to avoid this kind of situation. For example, a trust can help secure a loved one’s wishes and help families avoid intestate succession. Additionally, finding a trust is often easier than finding a will. We will further discuss the details of how a trust might help in Part Two of this post.

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When you sit down to hammer out your estate plan, you have a lot of important decisions to make. In addition to where you want your assets to go, you also have to make healthcare decisions for yourself and try to foresee all possible eventualities.

In the midst of all of that, arguably one of the most important decisions you’ll have to make is who to name as the executor (also known as a personal representative) of your estate. The executor is the person who will take your estate through the probate process, which is no small task.

How do you choose the right person for the job?

What an executor does

The executor is the person who administers your estate and follows your directions as spelled out in your Will and represents your estate, after your death, from the beginning to the end of probate process. Their primary responsibility is to gather all of your assets, such as real properties, intangibles such as bank accounts, investment accounts, 401 k plans, IA accounts, stocks, safe deposit box etc., and then inventory all assets that are in your name alone, without beneficiary designations. Your executor will need to figure out if you have creditors, provide them with notice, and arrange for filing and payment of your income taxes, as well as finding out if you filed and paid taxes prior to that time. Prior to the closing of the probate, the assets on hand have to be distributed to your named beneficiaries as set forth in your Will after deductions of debts, executor compensation and attorney fees.

The executor will have to figure out how much your debts are, if a creditor has priority over another and then pay those amounts out of your estate if appropriate. If anyone brings a legal action against your estate, your executor will have to hire legal counsel and defend it on your behalf.

Traits of a good executor

First and foremost, an executor should be someone who is responsible and dependable. They will have a huge responsibility, with many people counting on them, and they will have to meet strict court deadlines.

If you can, choose someone who has a good relationship with your beneficiaries, and who they trust. Choosing a trusted individual will make it less likely that any beneficiaries will decide to challenge their administration of your estate.

Whether you name your spouse, one of your children, a sibling or a close friend, it’s a good idea to inform your chosen person of their designation. The role of executor should not come as a surprise to anyone, and by telling them in advance you can give them the opportunity to ask you questions and clear up any ambiguity while you are still alive.

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If you have a parent or other loved one who has reached an advanced age or is in poor health, you may be starting to think about the probate process that you will have to go through once they are no longer with you. You may have several questions concerning the relationship between having (or not having) a will and the terms of probate. While the probate process can be complex, it does not have to be confusing or overwhelming.

If my loved one has a will, will I still need to go through probate?

Probate is the legal process whereby a deceased individual’s affairs are wrapped up. It involves giving creditors the chance to lay claim to what the deceased owed them, paying pending taxes, litigating any challenges to the will by beneficiaries, distributing bequests and more.

Probate is not just for people who die intestate (meaning without a valid will). Even if your loved one has a properly executed will when they die, they will likely still need to go through the probate process – unless they fit under certain specific exceptions.

Under California law, certain estates do not have to go through the probate process. For example, if the deceased arranged for all of their assets to transfer upon death, through a trust or other method, they can successfully avoid probate. If the estate is valued at $166,250 or less, you can also avoid probate if you wish to.

What if they die without a valid will?

If your loved one dies without a will, a probate court will have to oversee the process of distributing the deceased’s estate according to California’s intestate succession statute. This statute outlines exactly who will be entitled to what, and the order in which people can lay claim to a portion of the estate.

When someone dies intestate, and it is determined that a probate proceeding is necessary, the court will have to assign a personal representative to oversee the administration of the estate and to stand in for the deceased in any legal issues.

The idea of having to go through the probate process can be intimidating and discouraging. However, with the proper guidance, even the most complex of cases can be manageable.

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Probate is the legal process used to distribute an estate, often guided by a will. The process involves the naming of an executor or personal representative. This individual is responsible for initiating and completing the probate process and has a fiduciary duty to the estate to act in the best interest of the beneficiaries.

This fiduciary duty includes moving the probate process forward in a reasonable manner. In some cases delays are reasonable. In others a delay could signal the executor has failed to meet their fiduciary duty. It is generally reasonable, for example, for the probate process to take longer in instances where there is a will contest or the estate is very complex.

When are delays not reasonable?

Take note if the executor has started remodeling and probating real property, purchasing vehicles, or otherwise taken to spending in a way that is uncharacteristic. There are examples of cases where these actions signal the executor has started to take funds from the estate for their own personal use — a move that is in direct disregard to their fiduciary duties. Legal remedies are often available in these situations.

But how long is reasonable? The answer will depend on a number of factors, including the state. California state law generally requires the personal representative to complete the probate process within one year from the date of appointment. If, however, the personal representative files a federal estate tax this deadline is extended to 18 months. The law requires a personal representative who does not complete the process within this timeline to file a status report with the court to explain the need for an extension.

What are my options for recourse?

If the personal representative fails to file the status report with the court, the beneficiaries can petition the court to order the personal representative to file an accounting or take other actions as needed to close the probate process. A beneficiary could petition the probate court to compel the executor to begin the probate process or to have the executor removed from their position.

These are just a few of the options available to beneficiaries that are concerned about the administration of the probate process.

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Your loved one has chosen you to be the personal representative of their estate. It is an honor to be trusted with managing the assets they cherish the most – but it is also a big responsibility.

Acting as a personal representative can be a challenging job. So, here are five things to keep in mind.

1. Understand your duties

If possible, it will help to discuss your role with your loved one in advance. Having a direct conversation about their wishes can help ensure you are not surprised or overwhelmed when the time comes that you must actually carry out these duties.

Regardless of whether or not it is possible to discuss your role with your loved one, it is helpful to conduct research to make sure you understand the specific obligations included in the will and your duties under California law.

2. Be prepared to work

The duties of a personal representative are many, including but not limited to:

• Completing paperwork
• Informing companies and creditors of your loved one’s passing
• Paying debts
• Protecting the property

There is a lot to manage, and it can be time-consuming. Understanding your duties can help you prepare, but you must also prepare yourself for the workload it could involve.

3. Organization is key

With how much work personal representatives must complete and keep track of, it is critical to get organized. As AARP suggests, you should find an organizational system that works for you, whether that is spreadsheets or to-do lists.

4. Communicate

The aftermath of losing a loved one can often be stressful for everyone in your family. This stress can cause conflict to brew quickly between family members, heirs and beneficiaries.

That is why it is important to maintain a high level of communication throughout the process of administering the estate. Updating your family and keeping them informed can not only help ease the stress you all face but also reduce the risk of conflict.

5. Take care of yourself

As we mentioned above, this is not an easy time. You have a lot on your plate as a personal representative – on top of the grief you experience for your loved one. This combination can make it easy for individuals to face both emotional and physical burnout.

Make sure you have a support system of family and friends during this time to help you. Additionally, you should also make time to rest. The list of things to do might be long, but looking out for your well-being during this difficult time is critical.

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It bears repeating that navigating probate is not always easy. The complexity of the process is likely what leads to so many online articles about avoiding probate altogether, even though that idea is not as simple as it sounds.

However, it is the emotional aspect that often adds complications to probate. Administering an estate while processing and grieving a loved one’s death can be overwhelming for families. Dealing with the complexities of probate can become even more challenging for some blended families.

Three emotional challenges of probate for blended families

Families can become complex after a divorce or a second marriage. The new arrangement of the family tree can make both estate planning and probate complicated legally and financially.

Even so, there are other, more emotional factors that blended families should be aware of when it comes to probate:

• Time and distance can affect them more: As time goes on, children grow and start their own families. They might move to a new city or state. This is common for all families. However, this can be uniquely complex for blended families, as highlighted by Forbes. Stepchildren and stepparents might fall out of touch after the death of a loved one, leading biological children to be omitted from inheriting the stepparent’s property – which could include their biological parent’s assets under California’s community property rules.
• More opinions can lead to more problems: While a blended family does not necessarily equal a larger family, it does often involve more opinions and thoughts regarding the correct way to administer an estate. Spouses and ex-spouses, as well as stepsiblings, might disagree about the administration of the estate – particularly if the estate plan is not clear.
• Emotions and finances make matters complex: Disputes are not always personal. Even when siblings and stepsiblings get along well, the combination of grief and stress over finances can quickly erupt into disagreements and disputes over how to handle estate and probate matters.

These three issues are not nearly the only ones that can impact blended families after they lose a loved one. Every family is unique, after all. However, these three do play a role in creating complications for families.

How can blended families mitigate these issues?

Thankfully, there are ways that families can handle these complications. Of course, a detailed estate plan can significantly reduce the chance of disputes. It can also help families to:

1. Be aware: If the members of a blended family are aware of the potential issues they could face, it can help them manage these issues before they appear – and before they can escalate into disputes.
2. Be open: AARP reports that having clear and open conversations can help families avoid disputes as well. In particular, it can help if siblings communicate effectively and try to stay on the same page.

When families face probate, it is not an easy time in their lives. Making efforts to understand potential issues and work together can make all the difference for blended families in these situations.

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