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Is Probate Necessary In California?


Probate is necessary in most cases. There are some ways to avoid probate, for example, if you want to create a revocable or irrevocable trust, to name beneficiaries, if you have co-owners on accounts, or if you die without money or assets, but if you have assets and do nothing to avoid probate then it is necessary.

Does All Of A Deceased Person’s Property Have To Go Through The Probate Process?

Not all of a deceased person’s property has to go through probate. Someone could have a trust and the trust might contain a house, but that person may also own a rental property that’s not in the trust. In this situation the trust will deal with the house, with an asset like a rental property that’s not held in the name of the trust that rental property may be required to go through the probate process. This is why planning in advance should be a complete process, to avoid this situation.

What Are My Options For Avoiding Probate?

The best way to avoid probate is to talk to an attorney about all your options well in advance, as there are many options available. You can own property in joint tenancy for example, so when one person passes away the surviving tenant inherits the deceased tenant’s share. You can also name beneficiaries on accounts, and on houses. You can hold property in a corporation or an LLC. Three of the most common ways to avoid probate are beneficiary designation, joint ownership with the right of survivorship, or putting the property into a trust. However, each has its own set of consequences. Putting your child’s name on the house may avoid probate, yes, but this could also give your child a capital gains tax bill of, or in excess of, $100,000 after you die. Thus trying to avoid probate may have unintended consequences that should be considered, because actual probate would never cost $100,000.

It is always best to speak to an attorney before beginning estate planning. We can usually provide options that will be helpful, and inform you about problems you may encounter all through the process.

Who Are The Main Players In A Probate Case?

The main players in a probate case are the court and the estate of the decedent. If someone has a will in place then it should usually state a named executor or maybe even co-executors. The executor is the individual whose responsibility it is to distribute assets to the beneficiaries of the will. Other players would be the beneficiaries who receive the property at the end of the probate. The executor doesn’t necessarily take everything however. In fact, the executor is prohibited to take anything without approval from the court. The executor does collect a fee for serving in that capacity and performing executor functions, but the executor doesn’t take everything. In essence, the executor is nothing more than hired help. To recap, the main players are the court, the decedent, the executor, and the beneficiaries.

What Actually Happens During The Probate Process?

During the probate process, we notify the court that an individual passed away, and we notify the court of the estate or any assets that the individual owned at the time of his or her death, as well as the value of those assets. We also notify the courts of any debts or liabilities the deceased person owed, any taxes that are owed, and any outstanding balances anywhere, for all of that becomes public record and thus gives creditors an opportunity to put in a claim to be repaid. After their statutory period is over then we can petition or ask the court to pay the executor, pay the attorney, and distribute the assets to the beneficiaries. In total, the process could easily take 9 months to one year to complete.

What Is The Standard Timeline For A Probate Case?

The whole probate process takes approximately one year after someone dies. We can start the probate the day after a person passes away, even before a death certificate is issued. As soon as we are engaged we prepare the paperwork, have the executor sign everything, submit it to the court, and then wait anywhere from 30 to 90 days for the first hearing. At the first court hearing, we pray that the executor is approved by the court and is granted the authority of executor enabling him or her to manage the assets. Managing assets may involve opening an estate checking account, selling real estate or cars if necessary, and selling off or moving stocks or investment accounts if necessary, etc. The initial appointment takes between 30 and 90 days, then from that date, we have to wait 4 months for the creditor’s claim to end, then the real work of settling the estate can begin, and conclude.

In some cases, it takes longer if someone is trying to sell a house or another asset, and we may not want to wrap it up, but we will always have to wait a minimum of 4 months for the creditor’s claim to end. After those 4 months, we can petition the court to close the probate. Once we file the petition it takes about 2 to 3 months to get a hearing date to close the petition. Then, assuming there are no defects or errors and the court doesn’t see something that was overlooked, the court can order that the estate be closed, that the assets be distributed to the beneficiaries, that all creditors get paid, and that wraps it up.

For more information on Necessity Of Probate In California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 915-8770 today.

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