What is probate?
Probate is a legal process involving the estate and assets of a person who has passed away, known as the decedent. A judge hears this type of case in The Superior Courts in California, which can look different depending on whether the decedent completed their estate plan before passing.
If they left a will, there should already be a personal representative (Executor) chosen by the decedent to carry out their wishes. If there is no will, the appointed person (Administrator) is tasked with carrying out the probate case. This individual is responsible for determining who the heirs and beneficiaries are, determining which assets were left behind, gathering them for distribution, and paying any creditors.
The probate process occurs in the following order: 1) file a petition for probate, 2) handle the settling of any debts with creditors, and then 3) distribute the remaining assets to the beneficiaries.
It is essential to have a probate attorney assist with the probate case to ensure that proper documentation is filed and deadlines are met. The probate process usually takes 18 months to two years to complete. However, some cases may take longer if contested or if they involve other litigation. It is highly beneficial to have an expert attorney walking alongside you as you navigate the ins and outs of probate laws.
Do You Need to Probate the Decedent’s Estate?
If you are the appointed executor of a will, or there was no will, and you are attempting to probate without filing with the court, you may be limited in carrying out your responsibilities. However, depending on the estate planning before the decedent passed away, it is possible you may not need to go through probate.
Certain assets such as retirement plans, life insurance policies, and bank accounts typically already have beneficiary designations. This designation will allow an asset to transfer to the named beneficiary directly without going through probate. Other assets, such as personal property and real property, can require more to transfer to the beneficiaries/heirs.
If real estate is owned by multiple people having joint tenancy, that property would be required to go through probate unless it was designated as community property with joint rights of survivorship, which means surviving owners inherit the entire property, making probate unnecessary. In some cases, the property can be transferred directly to a beneficiary if a transfer-on-death deed exists. If this is not the case, any property must go through probate to be distributed to beneficiaries and heirs.
If the decedent’s estate wishes are relatively straightforward, there is a resource that provides simplified procedures to transfer an estate in California. These procedures can be applied to an estate that is worth under $166,250.
A will needs to be filed upon death, but if the decedent had a living trust that was properly funded, there might not be any need for probate. Having all assets and property in a trust allows the assets to be distributed to the beneficiaries upon the decedent’s death, bypassing probate and the necessity of involving the probate court.
What If You Don’t File for Probate?
You are not legally required to handle the administration of a decedent’s estate, even if you are named as the executor; you may choose to decline. However, if you are in possession of their original signed will, you are required to file it, along with the death certificate, with the court.
If you choose not to file the will, there is a possibility you could be held liable for damages owed to any beneficiaries, heirs, and creditors who were due to benefit from the estate. Your responsibility does not mean you are responsible for filing a petition for probate, it simply means you are responsible for alerting the courts of the decedent’s death and that they left a written will.
If you are the executor of a will and choose not to open probate, you will not be able to distribute assets properly, as titles cannot be legally transferred outside of probate. Additionally, opening probate is required for settling debts. If you are trying to avoid probate due to unpaid debts, it is essential to note that filing for probate will enact a deadline for creditors to attempt to collect. If they miss the deadline, they will not be able to collect any debts the decedent left.
You must also pay all taxes for the deceased persons such as filing income tax returns, federal and estate taxes, and any applicable gift taxes. If taxes are not paid, the IRS can place a federal lien against the estate.
Trying to Decide if You Need to Probate a Will?
There are a lot of different factors to consider when deciding if going through the probate process in California is necessary for administering an estate. Our trusted attorneys are experts in advising and assisting with the steps required to handle a decedent’s estate.
If you are unsure of the next steps, contact us to schedule a consultation today! We are invested in helping you achieve peace of mind throughout this challenging time.