What is the purpose of probate?
The purpose of probate is to get someone’s affairs in order after they’ve passed away if there’s a need for court supervision. Generally, this means that they passed without a Will, or that they did have a Will but didn’t have a Living Trust, or they left assets (like life insurance) without naming beneficiaries. During probate, the deceased person’s estate is reviewed by the court. The court ultimately decides who gets what from the estate.
What happens during probate?
Every state has its own probate laws, but the process generally involves the following:
- If there is a Will that lists an Executor, the Will and a petition for probate are filed with the court by the Executor
- If there is no Will, a family member or loved one asks the court to appoint them as the Administrator of the estate
- Beneficiaries/heirs are located and notified that the probate case has been filed
- Executor/Administrator is given permission by the court to handle the estate
- Makes a list of assets: real estate, personal property (belongings), vehicles, etc. and gets these appraised
- Takes care of bills, maintenance of property, any outstanding debts, bank accounts, safety of assets such as family heirlooms
- Submits list of appraised assets to court
- Distributes the estate after the court decides what will happen to the assets and closes the case
- The process can generally take anywhere from 7-18 months
What is an attorney’s role during probate?
During the probate process, an attorney acts as a guide for the Executor/Administrator. They can explain probate laws and processes, help fill out and file paperwork, and attend court if disputes arise. Probate in California allows a statutory fee structure, which means that attorneys’ fees are based on percentages of the total value of the estate.
Can you avoid probate?
You can take steps to avoid probate by securing your assets sooner than later. One of the best ways to do this is to transfer your assets into a Living Trust. Living Trusts help to avoid probate by establishing a plan for your assets to be transferred to your chosen beneficiaries.
In California, you can also avoid probate involving real estate by holding property in joint tenancy with right of survivorship or as community property with right of survivorship (for spouses). But a Living Trust is still recommended for a number of other reasons.
Generally, probate is necessary when someone dies without a Will or had a Will but no other documents that list beneficiaries. The court appoints an Executor/Administrator to be in charge of the estate as it is being reviewed. After the Executor/Administrator fulfills their responsibilities and the estate is settled, the case is closed and the estate is distributed according to the court’s decision.
An attorney can act as a guide for the Executor/Administrator during the probate process. Since some probate cases can be complex, an attorney can assist and make sure the Executor/Administrator is fulfilling their responsibilities.
Living Trusts, naming beneficiaries, and holding property under right to survivorship are all different methods that can be used, and combined, to avoid probate in California.