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Probate

Probate attorney

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What Is Probate?

Probate in the state of California is a legal process in which the estate of a deceased person is distributed to heirs and/or designated beneficiaries and allowed debts are properly paid. The purpose of probate is to prevent fraud following a death. If there were no probate, asset distribution would be chaotic and unfair. If the decedent leaves a will, then the assets in the estate will be distributed according to the will. If the decedent does not leave a will, the assets in the estate will be distributed according to California state law.

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Probate laws differ significantly across the country, therefore, you must be familiar with your state probate laws. As an example, if you die without a will in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin, your estate will be settled via community property laws as far as a surviving spouse is concerned. This means that if you are married at the time of your death, the estate distribution “hierarchy” will begin with your spouse.

Buy a copy of our book "Did the Government Write Your Will?" to learn more about probate, or pick up a free copy in our office!

Is Probate Private?

The short answer to whether probate is a private process is “no.” If privacy is a big issue with you, and you would not want anyone with an interest in what you left to whom following your death, then you will want to make sure you have an estate plan in place, and that your estate plan is built around a living trust—which is not made public upon your death. If you only have a will, then the contents of that will are made public through the probate process. That is not to say the all the contents of your will are published in the local newspaper, only that anyone who wants to know the contents of your will can find out. If you do not have a will or other estate planning document in place at the time of your death, the probate process also makes assets, debts, and beneficiaries public.

Probate with a Will

When a will is present, there is generally a named executor. If this is the case, the executor will put the wheels of probate into motion. The executor of the will has the legal authority to gather and value all assets owned by the deceased, to pay his or her bills and taxes, and, finally, to distribute all assets owned by the estate of the deceased to heirs and beneficiaries. Probate essentially “freezes” the estate until a judge determines the will is valid, that all relevant people have received notification, that all property and assets in the estate have been properly identified and appraised, that all taxes have been paid and that all creditors have been paid. Once all these tasks have been completed, the court will issue an Order allowing distribution of the property, and the estate will be closed.

Probate Without a Will

If you die without a will in the state of California, you are said to die “intestate,” therefore the California laws of intestate succession are put into place to determine who will inherit. Your estate must still go through the probate process in order to transfer assets to your heirs. When there is no will, a personal representative will be appointed to administer the estate. This personal representative or executor must receive any legal claims against the estate, manage all the expenses for the estate, pay creditors, locate all heirs (as determined by California law) and distribute remaining assets and property to those heirs. California intestacy laws dictate the following when a will is not present:

  • If you are married at the time of your death and you have no children, your surviving spouse receives the entire estate—both marital property and non-marital property.
  • If you are married at the time of your death and you do have children, your surviving spouse will inherit all your community property, along with 1/3 of your separate property if you had more than one child or 2/3 of your separate property if you had only one child. Your child would receive 1/3 of your property, or your children would receive 2/3 of your separate property, divided equally among them.
  • If you are not married at the time of your death, and you have children, your children will inherit all your property and assets, divided equally among them.
  • If you are survived by a spouse and your parents, but you have no children, your surviving spouse will receive all your community property and half of your separate property, while your parents will inherit half of your separate property.
  • If you are survived by parents only, your parents will inherit all your property and assets.
  • If you are survived by a spouse and siblings your surviving spouse will receive all your community property and half of your separate property. Your siblings will inherit the remainder of your separate property, to be divided equally.
  • If you have no spouse, no living parents and no children, your siblings will inherit your property and assets, divided equally.
  • If you die without leaving a will and you have no spouse, no children or grandchildren, no living parents and no living siblings, your assets and property will pass first to any nieces and nephews. If there are no nieces or nephews, your assets and property will pass to grandparents, aunts or uncles, great aunts or uncles or cousins.
  • If no relatives exist at the time of your death, your entire estate will go to the state of California.

Remember, even those who fall in one of the categories above may not inherit anything following your death if your debts exceed the value of the probate estate.

Probate and Executors

If you have a will, then you will name an executor or personal representative who will be in charge of distributing property to your heirs, settling your estate, and probating your estate. By naming an executor in your will, you avoid the necessity of a court-appointed executor—which saves your estate money, since court-appointed executors usually charge significant fees. It is important that you choose an executor who is willing to fill the position and who is also trustworthy and responsible. Executors must be at least 18 years old in the state of California and must be of sound mind (must not have been judged incapacitated by a court of law).

While many states do not allow a person with a felony conviction to serve as executor of an estate, California has no such statute. If a California court finds grounds for removal of your named executor, then the court may appoint an executor in his or her place. As an example, while it is unlikely, the state could find that the person you have named as executor is incapable of carrying out the executor duties or is likely to mismanage your estate. California imposes no special requirements on out-of-state executors, however, for practical reasons, it makes sense to name an executor who lives fairly close to you as he or she will be dealing with local courts. However, international or foreign persons are typically prohibited from acting as executors.

Must Small Estates Be Probated?

California offers some special rules for smaller estates, allowing these estates to skip the formal probate court proceedings. This is true whether there is a will or not. In order to determine whether the value of an estate is below the small estates limit, you will include only the things which would pass to heirs and beneficiaries via a will, or through California intestacy laws if there is no will.

Any assets held in joint tenancy will not be counted. Neither will retirement plans, transfer-on-death brokerage accounts, real estate transferred by a transfer-on-death deed or payable-on-death bank accounts. A life insurance policy with a named beneficiary will also not be counted toward the total amount of assets nor will assets held in a living trust or real property owned outside the state of California.

Considering those assets which are counted, if the personal property value does not exceed $150,000, there is a quicker Affidavit process available with a 40-day waiting period. An affidavit can also be used to collect salary or other compensation owed to the deceased. There is also a summary probate process available for estates worth less than $150,000.

How Long Does Probate Take?

In the state of California, the probate process can take anywhere from NINE to 18 months to complete. The amount of time your probate will take is dependent on the size of the estate as well as whether there are “unusual” assets which will require additional time. If unexpected issues arise, the process may be prolonged. Typically, when a will is present, the probate process will go faster than when there is no will and an administrator must be named and heirs located.

Ways to Avoid California Probate—And Why You Would Want to Avoid Probate

The primary reasons to avoid California probate include unnecessary expenses, the time involved in probate, the fact that probate makes the estate information public, and the fact that a judge you never met—who doesn’t know your family—will be making decisions on how your assets will be distributed. There are legal mechanisms available for transferring your assets outside of probate, including the following:

  • You can gift property to others, meaning you will not own the property at the time of your death, so no probate is necessary. You can also give a lifetime gift (inter vivos) to prevent specific assets from passing through probate. Remember, a gift once made may not be returnable.
  • Right-of-survivorship on real property—this involves titling assets with two individuals held in joint tenancy which includes right of survivorship.
  • Right-of-survivorship with a spouse—this also involves titling real property as community property with the right of survivorship.
  • Revocable transfer-on-death deed for real property—Under California law, real property can be transferred upon death through a revocable transfer-on-death deed. (this law expires on January 1, 2021 and is very rarely used due to its limitations)
  • Payable-on-Death accounts—for checking or savings accounts or certificates of deposit, you can add a “payable-on-death” designation, allowing you to still control the money in your account, however upon your death, any monies in the accounts can be claimed by the beneficiaries, thus avoiding probate.
  • Revocable or Irrevocable Living Trusts—If you have a living trust, you can avoid probate for almost any asset you own.

The Probate Process

When the probate process is necessary, the will—if one exists—must be filed in the county where the decedent lived, along with a Petition for Probate, requesting the appointment of an executor. A notice must then be published in a newspaper where the decedent lived to notify any potential creditors of the proceeding. Letters Testamentary will be issued to the executor, giving that person the legal authority to act on behalf of the state. An inventory of all the assets in the estate will be taken and filed with the court. Once all creditors and taxes are properly paid, the court will close out the probate, and the remaining property will be distributed to the beneficiaries of the estate.

Getting the Help You Need from the Gullotta Law Group

Facing probate on your own can be a daunting experience. It is far better to have an experienced estate planning attorney from the Gullotta Law Group handling the probate. We are knowledgeable of all California laws pertaining to the probate process and have guided many, many clients through the complexities of a California probate. Contact the Gullotta Law Group today for help in California estate planning.

To learn more about your legal options, take advantage of our free case evaluation or contact our office directly!
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