How Does Probate Work?
The entire process of probate entails a series of steps. A personal representative (a family member or relative) must come forward and start the probate process. The probate court will appoint an executor to get the ball rolling during this court-supervised legal process. If there is no will, then a family member or relative can ask the court to be appointed the estate administrator of the decedent’s personal belongings. In this case, dependent administrations or independent administrations are allowed.
Such individuals will therefore be responsible for the entire estate administration process. An administrator with authority will always ensure that every aspect of the probate administration process gets duly adhered to guarantee a fruitful probate experience. The personal representative’s timeline for probate lasts for 6 to 12 months. First, the personal representative files the will and a document called “Petition for Probate” with the probate court in the county where the deceased person lived or owned personal property (they will also need to provide a death certificate).
Most counties typically charge a $435 filing fee. The deceased person’s beneficiary designations will receive formal notices through a simplified process. The court (sometimes with the aid of an estate attorney) must prove the validity of the will and the list of people outlined as potential beneficiaries. The witnesses who signed the will must sign a sworn statement before a probate court judge. Doing this before the probate judge can also address the issues of undue influence.
How Does Probate Work? The Final Probate Steps
Once everything is in order, the court issues letters of administration, letters of authority, or letters testamentary that formally appoint an executor and grant that personal representative authority over estate assets during the court-supervised legal process. The personal representative to the deceased person can now start the process of organizing, gathering, and appraising the assets of the estate owner (distribution of assets). The issue of unpaid debts will also need to get addressed through this streamlined process.
The executor also has to pay final bills, estate taxes, and other unpaid debts. Creditors in California have four months to come forward with any claims against the owner. If there isn’t enough money to pay all valid claims, state law sets out the order in which claims are to be paid from estate assets (depending on the types of assets involved). The executor can ask the court to close the estate probate once all bills and taxes are paid. This is the stage when they can distribute what remains to the deceased person’s primary heirs and rightful beneficiaries.
How to Speed Up Probate in California
Several legal shortcuts can let spouses and families avoid probate court in California. Probate isn’t always necessary, and avoiding it can save you time, money (paid to probate lawyers), and hassle. Here are some ways you can speed up probate:
- Spousal property petition – A surviving spouse or registered domestic partner can have community property transferred to them through the Spousal Property Petition. Community property refers to assets gained throughout the marriage. The spouse must still submit the petition to the probate court for approval, but the process is much faster and enables the easy transfer of probate assets.
- Small estate affidavit – Small estates valued at less than $166,250 can skip the formal probate process altogether. The inheritor simply prepares an affidavit stating that they are entitled to the probate estate. Of course, you’ll need to apply the estate planning basics to develop a good estate plan.
- Simplified probate procedures – Small estates don’t have to go through full probate or hiring a qualified estate planning attorney. They can instead go through simplified probate procedures. The primary heirs or rightful beneficiaries can file a petition with the superior court in the county where the deceased person lived or where the property is located. This option is only available to estates that are worth less than $166,250. The beneficiary must include a copy of the will and the executor’s written consent in the petition to use this type of probate.
Understanding How Does Probate Work and Avoiding Probate Altogether
Some methods can help you avoid the complicated process of probate. However, they require the estate owner to have taken action before their time of death. These include:
- Setting up a living trust for their trust assets – Living trusts are an alternative to a last will and testament. You place your assets and real property “in trust” and appoint someone (after signing the necessary trust documents) to manage it on behalf of your heirs. You can either set an irrevocable or revocable trust. Your beneficiaries will gain access to the assets in the trust after your death. Your living trust will be responsible for overseeing the distribution of assets to beneficiaries.
- Payment on Death (POD) designation – A POD designation lets you appoint an heir of your bank accounts or stocks and bonds in the event of your death. Your chosen heir can skip probate and gain access to your bank accounts immediately after your passing. This enables an easier asset distribution.
- Transfer on Death (TOD) deed – You can use TOD deeds to transfer your real property to your heir after your death. For example, you can make deeds for your car or real estate, and your beneficiary will automatically inherit the property at death.
Get Help With California Probate
Probate in California has one big drawback: extremely high attorney fees. Attorneys in California typically charge a “statutory fee” for probate work an amount that is a percentage of the value of the assets that go through probate. The percentages are set out in California Probate Code § § 10810 and 10811. In practice, a probate attorney can charge a fee that is much higher than the amount of actual work done during a formal probate proceeding.
The good news is you don’t need to hire a lawyer to settle a probate estate. Probate is usually a matter of filing fill-in-the-blank forms. There is no trial and there may be no court appearances at all. Executors can handle probate themselves as long as there are no unusual complications such as disputes over inheritance.
If you do need guidance, consider hiring a legal document assistant. Our team of experts can take you through the entire probate process. We can provide step-by-step instructions for all required forms for an affordable flat fee.