When an individual in California passes away, the steps that follow largely depend on what type of estate planning, if any, the individual put into place. Traditionally an individual would create a last will and testament that would outline their final wishes for their estate. Other possible estate planning tools that an individual might use are trusts, joint ownership of assets, payable on death (POD), or transfer on death (TOD) designations. Then there is the possibility that the individual did not do any estate planning at all, which is typically seen when the individual is younger and dies unexpectedly. Regardless of the specific circumstances, many people question if and when probate is required in California.
What Is Probate?
Probate is the legal process through which an individual’s estate is administered and distributed after death. A court oversees the process and typically includes verifying the deceased individual’s will (if one exists), identifying and inventorying the deceased individual’s assets, paying debts and taxes, and then distributing the remaining assets directly to the beneficiaries explicitly named in the will.
The Pros and Cons of Probate
There are both pros and cons to going through probate. One of the main advantages is that it provides a degree of certainty to the estate administration process. The court oversees the process and ensures everything is done correctly and in accordance with the law. Probate can also be beneficial in cases with potential conflict among the beneficiaries. The court can help to resolve any disputes that may arise and ensure that everyone gets what they are supposed to.
On the other hand, probate can be a very long and expensive process. It can take any number of months or years to complete, and the costs can quickly add up. In some cases, the estate may not have enough money to cover the expenses, and the beneficiaries may have to chip in. In addition, the probate process is generally open to the public, meaning anyone can access documents related to the estate. This can be a disadvantage to people who want to keep their affairs private.
What Circumstances Avoid Probate?
There are a few different circumstances in which probate can be avoided altogether. This can dramatically simplify the process of distributing an individual’s assets after their death. These scenarios include:
- The deceased individual’s assets are all jointly owned with another person and pass to the surviving owner automatically upon the death of one of the owners.
- The deceased individual’s assets are all held in a trust and do not need to be distributed through probate.
- The deceased individual’s assets are all designated with a payable on death (POD) or transfer on death (TOD) designation and pass to the designated beneficiary automatically upon the individual’s death.
- The deceased individual’s estate is less than $150,000 of combined value (excluding the value of the individual’s primary residence).
How Long Does Probate Take in California?
The total time that it takes to complete the probate process in California can vary depending on a number of different factors. A typical probate case takes between 9 and 12 months to complete, but some can take much longer.
Factors that can influence the length of time it takes to complete probate include:
- The size and complexity of the estate.
- Whether or not there is a will.
- Whether or not the will is contested.
- How quickly the executor or administrator of the estate moves to file the necessary paperwork and start the probate process.
- How quickly the beneficiaries of the estate receive their inheritances.
What Are Some Common Reasons Why Wills Become Contested?
There are many reasons why someone’s will might become contested after an individual’s death. Some common reasons include:
- The belief that the will was not validly executed.
- The belief that the deceased individual was not of sound mind when the will was created.
- The belief that the will was created under duress or coercion.
- Disagreements between beneficiaries about who should receive what from the estate.
- The belief that the executor or administrator of the estate is not properly carrying out their duties.
If a will is contested, it can add significant time and expense to the probate process. In some cases, it can take years to resolve a will contest. Having a comprehensive estate plan in place can help to avoid will contests and the delays and expenses that they can cause.
How Can a Probate Attorney Help?
If you face the probate process or think you might need to in the future, it is important to take the time to understand your rights and options. An experienced probate attorney can advise you of the best way to proceed in your specific situation and help to ensure that the process goes as smoothly as possible.
Common value-adding services that probate attorneys can provide include:
- Assisting with the filing of all necessary paperwork.
- Representing the estate in court.
- Advising the executor or administrator on their duties and responsibilities.
- Assisting with the distribution of assets to beneficiaries.
- Resolving disputes among beneficiaries.
- Advising on tax matters related to the estate.
- Providing guidance on avoiding probate altogether.
Probate can be complex and time-consuming, but having an experienced attorney on your side makes it much easier to navigate and fill in any gaps in your understanding.
What Qualities Should You Look for in a Probate Attorney?
When you are choosing a probate attorney, it is important to select someone who has experience handling probate matters in California. You should also look for an attorney who is knowledgeable about California law and how it applies to probate.
Some other qualities to look for in a probate attorney include:
- A willingness to answer your questions and address your concerns.
- An ability to explain the probate process in plain language.
- A focus on providing individualized attention and service.
- An understanding of your unique needs and objectives.
- A commitment to protecting your rights and interests.
Overall, you’re looking for someone who has a genuine desire to help and has done so for many others in the past. With the right attorney on your side, probate doesn’t have to be as stressful or overwhelming of an experience as it would be without legal assistance. To learn more about if your current situation requires probate or a different form of legal estate service, contact the experts at The Flanigan Law Group today.