The death of a loved one is one of life's most difficult experiences. In addition to coping with grief and loss, those left behind are often thrust into dealing with an unfamiliar legal process called probate.
At the Law Firm of Kavesh, Minor & Otis, Inc., our compassionate California probate lawyers have extensive experience guiding families through the California probate process. Below, we address some of the most frequently asked questions we receive about probate in California. With this knowledge, you'll better understand what to expect and how our skilled legal team can assist you.
What Exactly Is Probate?
Probate is the court-supervised legal process of administering a deceased person's estate and distributing their assets to the proper heirs and beneficiaries. If the deceased had a valid last will and testament, the probate court will ensure its instructions are followed. If the deceased died without a will (known as dying "intestate"), the probate court distributes the estate according to California's intestate succession laws.
During probate, the court will appoint an executor (if there is a will) or administrator (if there is no will) to oversee the process. The primary duties handled during probate include:
- Validating the will in court to ensure it is legally enforceable
- Locating, identifying, and inventorying all probate assets owned by the deceased
- Getting date of death values and appraisals of all probate property
- Identifying and paying valid creditor claims against the estate
- Filing and paying any income taxes and estate taxes that are due
- Distributing the remaining assets to the rightful heirs or beneficiaries
- Preparing and filing a detailed accounting of all transactions taken on behalf of the estate
- Petitioning the court to close probate once all the steps are completed
The probate process is notoriously slow, often taking many months to complete. It is also expensive due to court fees, attorney fees, accounting fees, appraisal fees, and more. For this reason, many people engage in estate planning to avoid probate as much as possible.
When Is Probate Required in California?
Not all estates in California are required to go through formal probate. If the probate estate's total value (assets owned solely in the deceased individual's name) is $184,500 or less, a simplified affidavit procedure may be used to collect and distribute the assets without court supervision. Certain types of assets are exempt from this calculation, including:
- Property held in a living trust created by the deceased
- Assets owned in joint tenancy with right of survivorship
- Retirement accounts, IRAs, and life insurance policies with designated beneficiaries
- Pay-on-death bank accounts and transfer-on-death brokerage accounts
- Real estate owned in joint tenancy or as community property with right of survivorship
- Vehicles, boats, and mobile homes registered with transfer-on-death beneficiaries
In addition, a surviving spouse can petition the court to transfer the deceased spouse's property to them without going through probate. This is done through a Spousal Property Petition for assets valued at $184,500 or less or a Spousal Property Order for real property of any value.
Even when probate is required, not all assets are subject to probate. Only assets owned solely in the deceased individual's name, with no named beneficiaries, must go through probate. Many assets can be transferred outside of probate if the deceased engaged in proper estate planning ahead of time.
What Are the Role and Responsibilities of the Executor or Administrator?
The executor or administrator has the critical job of managing the probate process from beginning to end. The primary duties of an executor or administrator include:
- Initiating the probate process by filing a petition with the probate court
- Sending formal notice of the proceeding to heirs, beneficiaries, and creditors
- Creating an inventory and appraisal of all probate property coming into their possession
- Maintaining estate assets in good condition until they are sold or distributed
- Selling real estate and personal property as needed to pay debts or expenses
- Satisfying valid creditor claims and outstanding tax liabilities
- Distributing the remaining assets to the beneficiaries according to the will or state law
- Providing detailed accountings to the court showing all money coming in and out of the estate
- Completing any other duties required to settle the estate and close probate
Serving as an executor or administrator is a big responsibility that should not be taken lightly. Executors and administrators have a legal duty to act in the estate's and its beneficiaries' best interests. Failing to carry out this role properly can lead to personal liability. That's why executors and administrators should retain an experienced probate lawyer for guidance.
What Steps Are Involved in the Probate Process?
In general, the California probate process involves the following steps:
- The executor files the will (if any) and a petition for probate with the court in the county where the deceased lived.
- The court appoints the executor or administrator and issues them letters testamentary or letters of administration to act on behalf of the estate.
- The executor/administrator sends notice of the proceeding to the deceased's heirs, beneficiaries, and creditors.
- The executor/administrator identifies, locates, and takes possession of all probate assets and gets date-of-death appraisals.
- Known creditors must be notified and given an opportunity to file claims against the estate. Valid claims are paid from estate assets.
- The executor/administrator sells real property, vehicles, and personal items as needed to satisfy debts or facilitate distribution to the heirs.
- Estate and personal income taxes are prepared, and any taxes due are paid.
- Remaining assets are distributed to the beneficiaries named in the will or heirs determined under California's intestacy laws.
- The executor/administrator prepares a final accounting showing all money and assets collected and distributed by the estate.
- Once the court approves the final accounting, an order is issued closing probate and relieving the executor/administrator of further duties.
Any disputes arising during probate, such as a will contest, creditor claim litigation, or accusations of executor misconduct, must be resolved before the process can conclude. Disputes inevitably add time, stress, and expense to an already lengthy process. Having a skilled probate lawyer in your corner is crucial for resolving disputes as efficiently and favorably as possible.
What Are the Advantages of Avoiding Probate With Proactive Estate Planning?
Given the drawbacks of probate, it's easy to see why many people prefer to avoid it. Some of the top reasons to avoid probate include:
- Cost. Probate is expensive. These costs come from the estate, meaning less is left for beneficiaries to inherit.
- Delay. While the exact time frame varies, probate typically takes a year or more to complete in California. No distributions can be made to heirs until the very end of the process.
- Lack of privacy. Probate records are public, allowing anyone to see what assets the deceased owned and who inherited them. Some families prefer to handle these matters privately.
- Court entanglements. The probate court controls every step of the process, requiring the executor/administrator to seek approval for many actions. This oversight can be burdensome.
Proper estate planning is the key to ensuring your assets avoid probate. The most popular probate avoidance strategies are:
- Living trusts. Assets held in a living trust pass directly to beneficiaries outside of probate. Living trusts are completely private.
- Pay-on-death accounts. Adding a POD beneficiary allows the account balance to be paid directly to that person when the owner dies. The same is true for transfer-on-death brokerage accounts.
- Joint tenancy. When a property is owned in joint tenancy, the surviving joint owner automatically owns the entire asset upon the death of the other joint owner. No probate is necessary.
- Named beneficiaries. Life insurance proceeds and retirement accounts are conveyed directly to designated beneficiaries without going through probate.
Every situation is unique, so there is no one-size-fits-all solution. An experienced California probate lawyer can help you further understand probate, review your assets and goals, and recommend the right mix of probate avoidance tools for your family's needs.
