MacFarlane Legal

What Assistance Do You Provide To Clients Going Through Probate?


During the legal process of probate we represent the executor of a will (or in cases when someone doesn’t have a will then they are referred to as the personal representative). We represent this executor in the required court proceeding, which allows the executor to distribute the decedent’s assets to the beneficiaries or whoever he or she has named in the will. Essentially, our job is to ensure that the executor does his or her job correctly.

What Is Probate Actually?

Probate is a court process, a lawsuit in which heirs sue an estate to attain assets after the death. So if you are single and you own a home, and you die, in order for your children to attain that home they must sue your estate and have a judge issue an order, to award the house to them. The first people to get paid in a probate are creditors and any tax agency that may be owed funds, etc., then children are dealt with last, only after all your debts and obligations are paid off. Probate is a court process, and often people try to avoid it because it’s time consuming, expensive, and unnecessary because it’s definitely avoidable.

Are There Different Types Of Probate?

No, there aren’t different types of probate. A probate court handles different matters like guardianships and conservatorships, but when someone passes away probate is just the process of transferring assets of a deceased person to his or her heirs, known as the beneficiaries. There are some exceptions to the probate process, but if your gross estate value is over $150,000 then you have to go through the process referred to as a full probate. Full probate takes about one year typically and can be extremely arduous.

If your estate value is less than $150,000 then you may qualify for an expedited probate (small estate probate). There is also a rarely used option for individuals who own real estate valued less than $50,000. Occasionally, for example, land may be in a very remote location, and if your estate is less than $50,000, and it holds real estate, then a one-day probate process could be an option. So there are different types based on the value of the estate. The lion’s share of probates in California involve real estate, and as most real estate in California is worth well over $150,000 these types of probates are not applicable in many California estate settlements.

What Triggers A Probate In California?

In order for a probate to be triggered someone must die, and then the process of distributing the assets begins. Let’s consider the example of someone who owns a house, is not married, and the house is in his or her name, but there’s no existing trust in place. If their child wants to inherit the house, they will not be able to simply present the death certificate to the county recorder and be done with it. The surviving child must obtain a court order signed by a judge stating that the house should go to that child. A transfer of property can be impacted by a trust, ownership by a corporation, a co-owner who is a joint tenant or a community property spouse, and so forth, but in the absence of these types of factors the only way to transfer a house may be through a probate administration.

What Are The Top Misconceptions That People Have About Probate?

Many people have no idea what probate is at all. A common misconception some people have about probate is that the government is going to take a large percentage of the property. They think if they go to court that 40% or 50% of their asset will be taken by the state of California or the IRS. This is entirely false. It is quite rare for the government to inherit your property. Also, people think that it’s just a simple trip to the courthouse, a ‘get a few signatures’ kind of process. That’s just not how it works. The government isn’t going to take your house, but it’s not a one-day process either. At minimum, the probate will take 6 months, and it is probably best to expect at least one year. In addition to homes, probate is also necessary in regard to bank accounts, investment accounts, life insurance policies, and any asset that is valued over $150,000 that is not already assigned before the death occurs. Banks will not pass out money to surviving children without a court order to protect the bank. Ultimately, all financial accounts as well as real estate must go through probate.

For more information on Probate Process 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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