There is a very good chance that you will be involved in the probate of an estate at some point in your lifetime. Your involvement may stem from your appointment as the Executor of an estate by a decedent or because you volunteer to be a Personal Representative for someone who died intestate (without a Will in place). You might also find yourself involved in the probate of an estate because you are a beneficiary, heir or even creditor of the estate. Regardless of the reason why you become involved in the probate of an estate, you should have some idea how the probate typically works. Another reason to gain a better understanding of what happens during the probate of an estate is to help make informed decisions when you are creating your own estate plan. To help you become familiar with the probate process, the California estate planning attorneys at Collins Law Group have put together the answers to several frequently asked questions about probate. If you have additional questions, or need assistance with the probate of an estate, please feel free to contact our office to schedule an appointment for a consultation.
1. What is probate?
When an individual dies, that person leaves behind an estate consisting of all assets owned by the decedent at the time of death. Probate is the legal process that ultimately leads to transferring those assets to the intended beneficiaries and/or heirs of the estate.
2. Is probate always required?
Formal probate is not always required. In the State of California, a simplified method of transferring estate assets may be available if the estate assets are valued at less than $150,000 and they do not include real property, such as a house. If you are legally entitled to inherit the property, and the estate qualified, you may be able to use an affidavit to transfer ownership of the assets to you.
3. Do all assets go through the probate process?
No. One of the first things that must be done during the probate process is to determine which assets are probate assets and which assets are non-probate assets. Non-probate assets bypass the probate process and may be distributed to the intended beneficiary immediately. Common examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly help property
- Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation
- Certain retirement, pension accounts
4. What happens if the decedent did not have a Will?
When someone dies without leaving behind a valid Last Will and Testament, the individual is said to have died “intestate.” Dying intestate does not avoid probate. Instead, the assets in an intestate estate are distributed according to the California intestate succession laws, meaning only close relatives will inherit from the estate in most cases.
5. Who handles the probate of an estate?
If the decedent left behind a Will, the individual named as the Executor in the Will is in charge of administering the estate during the probate process. If the decedent died intestate, any competent adult may volunteer to be the Personal Administrator if the estate. If no one volunteers, the court will appoint someone.
6. What are some of the most common steps in the probate process?
Although no two estates follow the exact same path through the probate process, there are some common steps, including:
- Identifying, locating, securing, and valuing estate assets
- Opening probate – usually in the county in which the decedent was a resident at the time of death.
- Notifying creditors that probate is underway.
- Reviewing creditor claims and approving or denying each claim.
- Calculating and paying any state and/or federal tax due.
- Transferring the remaining assets to the intended beneficiaries/heirs of the estate.
7. How long does probate take?
The amount of time it takes to get through the probate process can vary widely in California; however, it will take at least four months because creditors are given that long to file claims against the estate. As a general rule, the more valuable and/or complex the estate assets are, the longer it takes to probate an estate.
8. What happens if someone challenges the Will?
When the decedent’s Last Will and Testament is submitted to the court for probate, any interested party has the right to challenge the validity of the Will by filing a Will contest. Contrary to popular belief, a Will contest cannot be filed solely on the basis that the contestant is unhappy with his/her inheritance (or lack thereof). If a valid Will contest is filed, the Personal Representative of the estate must defend the Will throughout the ensuing litigation. Basically, the probate process comes to a halt while the contest is litigated. If the contest is successful, the Will is declared invalid and the court looks for another valid Will or the estate is probated as an intestate estate. If the contest is unsuccessful, probate resumes using the Will submitted to the court.
9. Do I need to retain an attorney if I am the Personal Representative of the estate?
The probate process can be a lengthy, and complex, process that involves a number of legal and financial concepts with which the average person may not be familiar. For this reason alone, most Personal Representatives do retain an experienced estate planning attorney to help them during the probate process.
If you have additional questions or concerns relating to the probate of an estate in the State of California, contact the experienced California estate planning attorneys at Collins Law Group by calling (310) 677-9787 to schedule an appointment.