Common Probate Questions: You ask and we answer!
What is Probate Administration?
Probate Administration refers to the practice of identifying, valuing, and distributing the estate of a decadent. The process is carried out by the Executor or by a volunteer Administrator (if the decadent died without a will in place).
How Do I Know if Probate is Required?
If your property is valued at less than $166,500, in California, you may be entitled to use an affidavit to transfer your property instead of officially going through probate. However, it’s always smart to check with an experienced attorney to determine what is required for your needs and assets.
Is the Probate Administration Process Different for a Testate?
If there is a valid Will, the Will will decide how the estate assets are to be distributed. If there isn’t a Will, the distribution of the estate assets will be decided by the California intestate succession laws. In this case, the legal heirs of the estate must first be identified and located.
What Happens During the Probate Administration Process?
While no probate process is the same, there are some common responsibilities of an Executor or Administrator that include:
- Estate Assets. The process of identifying, locating, securing, and valuing your loved one’s estate assets should begin as soon after their death as possible. You will then need to make sure the legal transfer of the remaining assets to the beneficiaries and/or legal heirs takes place.
- Creditors. You must notify creditors that the probate process is underway and must review all claims that were submitted by creditors.
- Litigation. If someone challenges the Will, you have to defend the Will through the litigation process.
- Taxes. Federal gift and estate taxes must be calculated and paid, as well as an estate tax return.
Should You Hire a Lawyer?
Although this decision is yours, we highly recommend that you consider hiring an attorney. The complexity of the probate process and the risk of making a costly mistake are great and prompt most Executors and Administrators to use the help of an experienced attorney. Also, if you are a beneficiary and desire to challenge the Will, you will definitely need an attorney on your side to help with the litigation.
What is a Probate Code 850 Petition?
In CA, this petition allows you to transfer property in and out of a trust. It can be useful if you desire to pass the estate to the beneficiaries without going through the full probate process.
However, sometimes the property intended to transfer into the trust gets overlooked, or doesn’t make it into the trust by the time the Settlor passes. The CA Probate Code 850 was implemented to get rid of this error by allowing the certain properties to be transferred in or out of a trust after the decadent’s passing.
The CA Probate Code 850 can be filed by:
- A guardian or conservator
- A claimant
- The personal representative of the estate
- The trustee of the trust
- Any “interested person”
It can be filed under these following circumstances:
- If the decadent (while living) was bound by a written contract to convey real property or to transfer personal property, but passes before officially finalizing the conveyance or transfer, and the decadent, if still alive, would have finalized the process.
- If the decadent (while living) binds himself/herself or his or her personal representative by a written contract to convey or transfer property upon or after his/her death, and the contract can be enforced.
- If the decadent passes in possession of real or personal property, and the property is claimed to belong to another.
- If the decadent passes while claiming property that is held by another
Is Probate Always Necessary in California?
This depends on personal properties and assets. We encourage you to reach out to us at Hayes Law Firm to find out your options.
Tools and Strategies to Avoid Probate
- Creating a trust. Assets owned by a trust don’t need to go through probate at all.
- Changing account designations to “POD or TOD.” By changing financial accounts to “payable on death” or “transfer on death,” a designated beneficiary on these accounts or assets have no legal ownership interest in the account or asset while the owner is alive.
- Using the right type of joint ownership. If your property gets listed as joint owners “with rights of survivorship,” it entails that this property will get passed to the remaining co-owners while skipping the probate process
- Relying on life insurance. Life insurance proceeds also skip the probate process. You can use a policy to help avoid going through the probate process.
California Small Estate Alternative
You are eligible to take advantage of California’s Small Estate Alternative if you have a:
- Petition to Determine Succession to Real Property. This applies to property deemed worth less than $150,000. You can file a petition with the court and obtain a court order instead of having to go through official probate.
- Spousal or Domestic Partner Property Petition. If you are a surviving spouse or partner, you may be entitled to file a petition to gain a court order that tells you what share of your deceased spouse or partner’s share of community and individual property belongs to you.
- Small Estate Affidavit. You may be able to transfer property using this if all of the following are true: 1. You are legally entitled to inherit from the estate. 2. The estate is worth less than $150,000. 3. You are only transferring personal property.
Common Probate Questions
Common Probate Questions – CA Probate
Common Probate Questions – CA Probate