No part of losing a loved one is easy. Mourning a death takes up an immense amount of physical, emotional, and mental energy. As a result, many people take time off work to be with family and give themselves time to digest the news.
Unfortunately, the legal system does not necessarily allow time and space to do these things. As soon as someone dies, the time starts ticking on their estate, their end-of-life documents, and the next steps that the family must take.
Probate is one such step. The probate process is an essential legal procedure that ensures that the estate is taken care of. Therefore, it’s essential to know about the process of probate, so you can be sure to meet all the necessary deadlines and requirements.
What Is Probate?
The process of probate involves the state reviewing the deceased’s assets. You file for probate when someone dies to move forward with distributing the assets to the beneficiaries.
During probate court, a judge will look at any documents that the deceased left behind and assess any outstanding debt or taxes that need to be paid. The judge will settle these with funds from the deceased’s estate. Then, the judge will assign an executor.
This executor is charged with arranging for the deceased’s assets to be distributed as outlined in their will. If there is no will, the judge will assign the assets to the deceased’s next of kin. If there is no executor named, the judge will select one. Then, when the assets have gone through probate, the executor can begin distributing what’s left to those outlined in the will.
This process can be lengthy and very taxing for families. Inheritance disputes often arise, even in the most peaceful or close-knit families. Money and assets can bring out the worst in people, and many executors’ jobs are unpleasant.
How Long Do You Have to File for Probate?
Technically speaking, there is no limit on how long you can wait to file for probate. However, you only have six months from death to begin paying taxes on any inheritances. This can mean late fines and back taxes owed if you wait too long.
Because of this, it’s important to file for probate right away. The probate process can take a long time, and it’s best to get things settled as soon as possible. It’s the best way to protect the estate, your family, and any inheritances.
It may be emotional to begin the process right away, but it’s the right thing to do. In many cases, families can carry out the deceased’s wishes more accurately when they file for probate soon after the death.
Is Probate Always Necessary?
It’s important to understand that some situations do not need probate. However, this only occurs if the deceased did not have any significant assets to leave to beneficiaries. For example, if an individual dies as a renter and has only their clothing and keepsakes as possessions, the probate court is likely unnecessary. However, if they leave behind savings, property, or guardianship, a probate court is required.
Do All Assets Go Through Probate?
Not all of the deceased’s assets will go through probate court. Certain assets such as trusts may be exempt from going through probate court. This is because, technically speaking, the deceased passed those assets on to another person. Probate courts can only assess the assets of the deceased themselves.
If the individual leaves behind assets valued at less than $100,000, California courts allow for a more simplified version of the probate process. This helps speed things along and keeps families from having to wait. However, some situations do not allow this, so you should consult a probate lawyer when you begin the process.
How Much Does Probate Take?
The amount that the court takes from the deceased’s estate varies depending on the debts and taxes they left outstanding. The amount taken is relative, so assets are guaranteed to remain. Usually, the court takes 4% to 7% of the value of the assets, but there are situations in which a higher percentage is taken.
When you have the help of a probate attorney, you can be sure that the court is only taking what it needs to.
Do I Need a Probate Attorney?
Though a probate attorney is not required by law, having one is strongly encouraged. The probate process is complicated and messy, and it’s easy to feel confused about what to do. There are strict deadlines and industry-specific paperwork that can be difficult to complete on your own. A probate attorney can help you with all of this and ensure that you know what’s going on with your loved one’s assets.
When paperwork and deadlines move efficiently, you can shorten the timeline of your probate process as well. An attorney helps keep the gears moving smoothly and works to get things moving again if you encounter an issue.
Probate attorneys can also help decipher and interpret the will, as they are not always straightforward, and they can be outdated or no longer applicable. A probate attorney’s help can ensure that you’re executing the will according to your loved one’s wishes.
Finally, having an attorney present can help the asset distribution process move more smoothly. It’s more difficult for families to blame the executor when an attorney verifies the will. Instead, it’s easier for them to listen to an impartial third-party professional, and this can protect the executor from being the scapegoat.
Contact The Flanigan Law Group Today
Our team of Orange County Probate Attorneys at The Flanigan Law Group has been practicing probate law for over a decade. We’ve seen estates of all sizes, and we understand how to move any situation through probate quickly and efficiently. We are accustomed to the questions and concerns of families going through probate, and our expertise offers a sense of ease for many of these families.
For more information about how we can help your family in this difficult time, please contact our firm online today.