Wills and Probate

The concept of a will can seem straightforward, but the probate process can get complex.

Probate in California

The California Probate process is in place to prove whether a Will is valid or not. That means making sure the inheritance goes to the right heirs and that all the deceased’s wishes are fulfilled.

Probate is a process by which you, upon your death:

  • Transfer the property of a decedent to an heir; and
  • Take care of the financial responsibilities and obligations of a decedent.

Probate also occurs when there is no will and a probate court must decide how to distribute the assets of the deceased’s estate to his or her loved ones. For small estates, probate may only take a matter of weeks or months. But the probate process for larger estates can take years. Anyone with a valid claim to any assets in the estate may contest the will or file a petition with the probate court, which could drag the process out even longer.

The purpose of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the Lord dies. It’s a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed.

Many assets don’t go through probate. Bank accounts, retirement funds, and life insurance policies with a payable-on-death beneficiary are transferred to the beneficiary upon the owner’s death. Assets in a trust are governed separately from probate according to the terms of the trust.

Contrary to popular belief, having a will doesn’t help you avoid probate, but the terms of your will guide probate, which can make the process easier for everyone involved.

Executors

An executor is appointed as the personal representative by the court to execute the will.  If the decedent died without a will, an administrator is appointed as the personal representative by the court.

It may be the case that you are the trustee or executor of a trust or estate.  You should be fully advised of your duties and obligations. Not every heir is pleased with what they are to inherit from an estate. Litigation happens.

In life, there are many variables, and although clients often do their best to fulfill their duties and obligations in some of the instances referenced above, disputes can arise.

Being a personal representative of an estate is a very serious responsibility.  The personal representative of the estate must collect assets of the decedent, pay expenses and liabilities of the decedent, and distribute assets to the heirs of the estate.  The entire probate proceeding is supervised by the court. It is a good idea to have an experienced probate litigation attorney on your side, defending the interests of the deceased.

What if you were the wife or domestic partner of the decedent?  There may be simplified procedures that you can take if this is the case.  If you have questions about this, your attorney can assist you.

When does probate start?

When a person dies, that person’s assets become part of his or her estate, unless those assets are co-owned by someone else, such as a spouse. How those assets are distributed to the decedent’s loved ones is a major part of probate. If the decedent left a will, then it goes before a probate judge who determines its legality. The will directs probate, but its terms can be contested. If the decedent did not leave a will, he or she is considered to have died intestate, and the court will determine the rightful heirs of the decedent’s estate. This decision can also be contested.

The first step in initiating probate proceedings is filing a petition with the California Superior Court in the county where the deceased resided at the time of her death. This petition will trigger the court to schedule a hearing in approximately thirty (30) days.

After the petition is filed with the court, the notice of hearing will be published a minimum of three times in the local newspaper. It is also necessary to mail the notice to everyone named in the will (if there was one), along with all legal heirs of the deceased. Notice must also be provided to potential creditors.

If there is a will, it is necessary to “prove” the will. In some cases, the will contains specific language and/or an affidavit from everyone signing the will, which makes it unnecessary to prove the validity of the will.

The probate process in California requires the appointment of an estate representative. The estate’s personal representative is a person or entity authorized to probate a will in California. More specifically, the personal representative is usually the named executor of the will or administrator of the estate. However, if the decedent did not have a will, certain persons related to the decedent are entitled to appointment as a personal representative. It might be necessary for the executor to post a bond before they can accept the letters and act for the estate, although some wills include provisions stating this isn’t necessary.

One of the primary duties of the personal representative is to take possession of all of the deceased’s assets, but only those that are subject to probate. The court usually requires an inventory of the estate property. Sometimes an appraisal of certain property may be required.

Once the personal representative has provided notice of the death to creditors, those with debts payable by the estate must submit a claim. If those claims are determined to be valid, they will be paid from the estate. The personal representative is also responsible for making sure all estate taxes are paid, which includes filing federal estate taxes and state taxes, which the state of California imposes.

The final step is closing the estate. This final step involves providing an accounting of all actions taken by the personal representative with regard to the estate. A petition, which summarizes the estate and reports all actions taken on behalf of the state, will be filed with the court.

When all these steps have been completed, the executor can petition the court for permission to distribute what is left of the decedent’s assets to the beneficiaries named in the will.

How long can probate take? The probate proceeding can take 9 months or longer, depending on the facts and circumstances of each case.

Probate court proceedings can be long, costly, and confusing. In California, you can make a living trust to avoid probate for virtually any asset you own — real estate, bank accounts, vehicles, and so on. A living trust is an arrangement under which one person, called a trustee, holds legal title to the property for another person, called a beneficiary.

A custom estate plan tailored to your needs is critical to the preservation of both your personal and business assets for you and your heirs. Mendes Weed, LLC can assist you.

Christina Weed, Walnut Creek Attorney

California Trust and Estate Law Specialist

Partner Christina Weed has years helping people with their estate plans and trusts. She is a licensed attorney with an LL.M. in Taxation from the University of San Diego and a Bachelor’s Degree in Accountancy. She serves as Chair of the Tax Section of the Contra Costa County Bar Association and is also a member of the Estate Planning Council Diablo Valley and the Tri-Valley Estate Planning Council.

Christina has been designated a Certified Specialist in Taxation by the State Bar of California.

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Probate Court Websites by County

Contra Costa County https://www.cc-courts.org/probate/general.aspx. Alameda County http://www.alameda.courts.ca.gov/Pages.aspx/Probate Solano County https://www.solano.courts.ca.gov/Courts/ProbateConservatorshipGuardianship.html San Francisco County...

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