San Diego: (619) 546-7880
What is probate and how does it work?
When it comes to estate planning, you may have encountered the term probate. In this blog post, we define what probate is, when it’s required, and what’s involved.
What is probate?
Probate is a legal term and process to verify a deceased person’s last will and testament, if they created one. It involves the following:
- Authenticating the will
- Appraising and inventorying the deceased’s property and assets
- Paying off the decedent’s debts including taxes
- Distributing the assets to the beneficiaries. If there is no will, state law will direct how the property and assets are distributed.
Probate laws vary by state. According to the California probate code:
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
What estates need formal probate?
Certain estates need to go through probate court. Just because there is a will doesn’t always mean that probate court can be avoided. Typically, probate court is necessary when a will is unclear, contested, or when only the deceased holds the assets in their name.
In California you must go to court if the decedent’s property is worth more than $166,250. The probate case starts with a Petition for Probate. This form has options such as Petition for Probate of Will and for Letters Testamentary and Petition for Letters of Administration.
How does probate work?
Here are basic steps to take when dealing with the deceased’s estate:
- Determine the executor. If there is a will, the representative of the estate is the executor named in the will. If there is no will, the court will appoint an administrator to be the representative.
- Fulfill the executor’s duties. After the executor’s been identified, they fulfill duties that include (but are not limited to):
- Securing the decedent’s property
- Collecting documents such as copies of the death certificate
- Collecting assets and death benefits
- Managing digital assets (such as documents stored online) and canceling subscriptions
- Preparing the decedent’s final income tax returns
- Notify creditors
- Identify the heirs and beneficiaries. When it comes to naming those who have the right to inherit, “beneficiaries” are the recipients if there is a will. Heirs refer to those who have the right to inherit, but there was no will created (otherwise known as “dying intestate”). Figuring out who the heirs or beneficiaries are isn’t always simple even if a will is present. For instance, the will may not have been updated prior to the loved one’s death or no changes were made after a divorce. In cases like these, consult with a lawyer to identify the heirs or beneficiaries.
- Inventory the estate. The executor will take stock of the property, put together descriptions for each asset, and determine the assets’ values at the time of death. Property includes tangibles (such as jewelry, cars, or furniture) or non-tangibles (such as stocks and bonds); real property includes things permanently on land like a house. As the executor inventories the assets, it’s also important to note how the decedent came to own the property. Some helpful questions to ask include who it was purchased with, whether it’s co-owned or not, and whether it’s community property or not. There are other factors to consider and where legal assistance will prove beneficial. The decedent’s taxes and final bills also need to be paid off, and taxes due will be paid from the estate account.
- Distribute the assets. Once the previous steps are complete, the assets will then be transferred to the heirs or beneficiaries.
How Our Probate Attorneys Can Help
Probate should be avoided as much as possible. Planning with an estate attorney in advance can save you the headache of probate court, potential relationship strains, and financial stress. One advantage of probate is having the court settle disputes between heirs. But you also run the risk of higher costs and a drawn-out process that could take anywhere from a few months to several years.
Hoffman & Forde’s probate lawyers are here to help you navigate probate disputes and estate administration. As a boutique firm, we draw from diverse practice areas and decades of experience so your case is covered from all angles. We keep fees cost-effective while still providing undivided attention and high-end legal services for our clients in San Diego, Los Angeles, and Orange County. Contact us for a consultation today.
