Understanding Probate And How It Impacts You
How to go about leaving or claiming an inheritance usually comes with many questions. You may be wondering about how a living trust should relate to a will or how to go about the process of probate for a will that’s already in place.
At The Probate House L.C. our lawyer have decades of experience helping people address these questions. We can guide you to a workable solution tailored to your specific circumstances.
Call 310-776-9028 to get started. With offices in Torrance, our attorneys serve clients throughout Southern California.
What is probate?
“Probate” commonly refers to a court-supervised process for transfer of the property of someone who has died.
Is probate always required?
Probate is necessary in California if the deceased person’s estate exceeds $166,250. A last will and testament does not prevent probate, but it does allow the decedent to choose who will be in charge of handling his or her final affairs and how their assets will be distributed. Every situation is different, and the necessity for probate will depend greatly on the titling of assets and other factors. We can help you determine if probate will be necessary or if another type of petition or procedure would be more appropriate, for example: 1) a spousal property petition; 2) small estate affidavit procedure (pursuant to Probate Code Section 13100); or 3) a Heggstad petition. If the will is disputed, then we can assist in the steps that must be taken to settle contested matters.
Is the probate process cumbersome?
Probate can take a year or sometimes even longer, depending on the size of the estate. There are also numerous costs and fees associated with it.
Trust administration generally does not take as long as probate. But trust administration carries with it more risk of wrongdoing by fiduciaries than probate. This is because there is less court involvement and supervision with trusts than probate.
What type of estate planning options avoid probate?
There are many ways that a person can plan to avoid probate. These options predominately feature the use of trusts and other legal options that name a beneficiary.
Does probate apply only if there is a will?
One of the most common misconceptions about probate is that it is only necessary for decedents who left wills. Intestate estates (i.e. estates where there is no will) must also pass through probate. In California, intestate probate involves an established order of succession. The decedent’s assets will pass to their next of kin, such as their surviving spouse. If they were not married, the next in line to inherit is their child, then their parents, then their siblings.
What role does a will play in establishing the terms for probate?
A will grants the decedent much more power over the handling of their estate. For example, in a will, you can specifically name someone to serve as an executor, also called a personal representative, to fulfill the terms of your will. If you do not name anyone, the court will appoint an administrator. The court also appoints an administrator when someone dies intestate.
How does the probate process relate to living trusts?
When you place assets into a living trust, they can pass to your beneficiary or beneficiaries without court supervision. This allows the recipient to avoid probate. Some people choose to use living trusts as their primary estate planning document. Naming a trust as the beneficiary of your estate is commonly called a pour-over will. Upon your death, this brings non-trust assets into the trust. As we noted earlier, however, using a living trust rather than the court-supervised process of probate increases the possibility of wrongdoing by fiduciaries who are handling the estate.
Where does a probate action have to be filed?
The county in which the decedent lived at the time of death is the county in which you must file a probate case. You are not required to file a supplemental probate in another county within the state, only if it is outside of CA).
What is a probate conservatorship?
A probate conservatorship is when a judge appoints a conservator to manage the legal, financial and/or medical affairs of someone who cannot care for themselves. Typically, this occurs when someone has a severe mental or physical incapacity that inhibits their ability to make autonomous decisions.
If someone cannot manage their estate, for example, then a judge may appoint an estate conservator to pay the conservatee’s bills and manage their assets. (not necessarily true as to conservatee retaining power to execute EP docs and second sentence I guess is theoretically correct by way of substituted judgment petition but seems too nuanced for the article and may lead to unnecessary confusion).
Learn More About How Probate May Affect You
This FAQ has answered only a small fraction of the questions we hear from our clients. You probably still have many more questions and concerns that you wish to bring to a lawyer. Reach out to our experienced team at The Probate House L.C. to learn more about the probate process in California. To contact us, call 310-776-9028 or send us an email.