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When someone passes away, their assets cannot be distributed in many cases until after the estate goes through the probate process whether the decedent has a will or not. Probate can be a lengthy process, so it can help to understand the basics of what to expect if you’re the executor of an estate or when you’re creating your estate planning documents.
What Is Probate?
Probate is a legal process that occurs through the court. The will and other documents are filed so that the decedent’s wishes can be confirmed and carried out without too much issue in the majority of cases. The executor or representative of the estate will be responsible for filing paperwork and performing other duties in a timely manner to ensure that the decedent’s debts are paid and beneficiaries receive their share of an estate.
Although the state of California generally prefers that the probate process is completed within a year, there are cases where this time can be extended if the estate ends up being very complex. However, the initial probate paperwork needs to be filed within 30 days following the decedent’s passing either by the executor named in the will or a close family member who wishes to take on the role when there is no will. The court will either accept the named executor or appoint someone to fill that role.
The Probate Process
The executor or a representative will have to file a notarized petition along with the will, if there is one, and the death certificate. There are fees for submitting and filing these documents with the court. The court will legally assign the executor or another representative as administrator to handle the estate and will determine if the will is valid. As a note, it’s rare for the court to determine that a will isn’t valid, but it can happen.
The assigned administrator will need to make a list of all heirs and beneficiaries so that these persons can be notified of the decedent’s passing. A notice is also generally published in local newspapers multiple times. This can save a lot of time and effort on the part of the administrator in tracking down and contacting every person individually.
In addition to determining heirs of the estate, the administrator will be required to list all creditors that the decedent owed at the time of death. Although these creditors must be notified in writing of the decedent’s passing, newspaper notices serve to inform those creditors who may not be known to the administrator when he or she is going through the decedent’s estate. Creditors have four months to let the court know of the decedent’s debt once probate has begun. The court has the choice to validate these debts for payment or may find them invalid.
Another responsibility of the administrator is to take inventory of all of the decedent’s assets and have them appraised. This inventory of all items and their value must be submitted to the court.
Any applicable assets will then be liquidated to pay creditors as well as estate taxes and any taxes owed by the decedent at the time of death. A federal tax return may need to be filed as a part of this process as well. It’s the administrator’s duty to complete and file all necessary paperwork and pay the necessary debts and taxes before probate can proceed.
Once these steps are completed, the administrator can then make a request to the court for the estate to be closed. It’s important that the administrator keep accurate records of all assets that have been liquidated and creditor payments to submit to the court at this time. After this request has been approved by the court, the administrator oversees the distribution or remaining assets to beneficiaries and eligible heirs of the estate.
Do All Wills Have to Be Filed Through Probate?
While it is true that all wills must be filed with the court within 30 days of the decedent’s passing, not all estates must pass through the lengthy probate process. Smaller estates or those composed mainly of certain types of assets may go through a simplified process that is less expensive and time consuming.
Do All Assets Have to Go Through Probate?
It might surprise you to know that not every asset has to go through probate. Certain property may be exempt if it’s held jointly with specific wording that the property passes to the other party or parties upon death. Additionally, assets that are placed into a living trust are generally exempt from probate, so it could be beneficial to create this type of document for larger estates.
Assets That Qualify for Probate
Any high-value assets may be subject to probate, including real estate, vehicles, bank accounts, stocks and bonds. However, even some of these may be exempt from the probate process if they have some type of payable-on-death designation or if the spouse is the only beneficiary. Unfortunately, even some lower-value items, such as furniture and jewelry, may be subject to probate, so it could help to discuss the matter with an attorney.
Assets Exempt from Probate
Some of the assets that may be exempt from probate are life insurance, pension and IRA benefits that are paid directly to beneficiaries as well as property that is designated as payable on death, transfer on death or community property with right of survivorship to a spouse. Additionally, you can avoid probate for assets that are held in a living trust as long as there are no objections from beneficiaries.
Can Probate Be Avoided?
For estates that are valued under a certain amount, which is currently $166,250, there is a simplified procedure that can be selected. The executor must file a petition to be approved by the court in these cases. This can be a good way for beneficiaries to receive their inheritance much more quickly than if the estate went through the entire probate process.
Another way to avoid probate is to make sure all assets have designations that they’ll be passed on following death, such as using a payable on death wording in the legal documents.
Creating a living trust is another way to keep assets from being subject to probate, but this must be planned with the assistance of an estate planning attorney prior to death.
Finally, you may choose to give your beneficiaries some of their inheritance before their death. While you’ll no longer have possession of these items, you’ll have time to see them enjoy their gifts from you.
Is an Attorney Needed for Probate?
While smaller, simple estates can typically be handled solely by an administrator, it can be beneficial to hire an attorney when going through the probate process to ensure everything is done correctly and on schedule. While the cost of hiring legal assistance will vary based on the attorney and the estate, this has the potential to save money by avoiding loss due to missing an important deadline or filling out the necessary paperwork incorrectly. The more complex an estate, the more an attorney can help with the process.
However, perhaps the best time to hire an attorney is before death in the form of estate planning. A lawyer who specializes in this field can advise and assist with the appropriate documents that your situation may require and can help with setting up deeds and other ownership documents with the proper designation that will keep certain assets from having to go through the probate process and will allow them to go directly to your intended beneficiaries upon your death.
While there are fees for these estate planning services, making a plan ahead of time can be more cost effective than waiting and hiring an attorney to handle an estate once the need for probate arises.