Losing a loved one is hard. Not only is there sorrow; there’s also the struggle of dealing with the belongings of the person who died. In general, this legal process of administering someone’s estate when they die is called a “probate.”
The hassle of going through the probate court is further complicated when the death is sudden. In such cases, the deceased person often leaves no will. This has happened in some high-notoriety cases, such as that of the popular singer Prince.
To save your loved ones time and cost, it helps to do some estate planning well in advance of any tragedy. This article will help you understand how probate estate planning works, how you can help your loved ones avoid probate altogether, and some extra options if your estate isn’t exactly the size of Prince’s.
How Probate Estate Planning Works
Probate estate planning involves allocating all the assets that a person owns at their death. If there is a will, these assets will be passed to the beneficiaries according to the will and are usually subject to a probate proceeding.
You may be wondering what qualifies as a probate asset. Essentially, they include anything and everything a person can own. Here are some examples:
- Personal property, such as cars and jewelry
- Insurance policies that designate the estate as the beneficiary or that have no designated beneficiary
- Real estate property, whether solely owned or held with other tenants in common
Meanwhile, assets that are placed in trust or have designated beneficiaries do not qualify as an estate subject to probate. These assets do not have to go through a probate proceeding and are directly passed on to the beneficiaries upon death. We’ll cover more about how trusts work later in this article.
Who Can Be Appointed an Estate Personal Representative?
The answer to this question highly depends on whether there is a will. The will often name a personal representative, also known as an executor. Otherwise, the representative is called an administrator and is appointed by the court to manage the estate of the deceased person. Naturally, you get more control of your estate if you name your own representative in your will.
Regardless of being an executor or administrator, an estate personal representative generally is bestowed with a fiduciary duty. They must act in the best interest of the estate of the deceased person throughout the process of administering the probate estate.
How Long Does Probate Last?
After someone’s death, the full probate process in California usually lasts at a minimum of 7 months, but it can take as long as 18 months. Take note though that the length of the process varies depending on the case. For instance, disputes arising between beneficiaries may complicate and lead to a longer process.
Aside from the time, it is also best to consider the cost of probate proceedings so as to avoid unpleasant surprises. Check our article on the cost of probate and fees in California for more specific information on this.
Within the probate time frame, there are a few steps that have time limits set by the state. Failure to take these steps within the allotted time can make the whole process much more difficult. Here are three to keep in mind.
- Filing Probate
According to the California Probate Code, an executor must file the will within 30 days of the death of the person.
- Filing for Small Estate Affidavit
If the assets of the deceased person qualify for the small estate procedure (which will be discussed further later), it is required to wait for 40 days before you file the said affidavit.
- Delivering the Will
If you happen to become the custodian of a will that is in question, you are required to submit the will to the court within 30 days upon learning of the death.
When Is It Necessary to Probate an Estate?
Probating an estate is on a case-to-case basis, and it’s actually not always necessary. There are four main situations where it is absolutely necessary to probate an estate:
- Absence of Will
As mentioned earlier, it is necessary to undergo probate proceedings should the deceased person fail to create a will beforehand.
- Validity of Will is in Question
Having a will does not definitively mean probate won’t be necessary. If a dispute that questions the validity of the will arises, then it is required that the estate goes through the process to settle the dispute.
- No Designated Beneficiaries
Sometimes, a person dies without a spouse, children, or other inheritors of their estate. Such estates must undergo the probate process to determine the best course of action. In most cases, the court locates a distant relative to inherit the assets or the assets are appropriated by the state.
Nobody really enjoys probate. Fortunately, there are five alternative processes that you may undergo to avoid probate in California. Keep these in mind when you’re doing your probate estate planning so your loved ones can save time and effort down the line.
- Living Trust
Some people choose to use living trusts as an alternative to, or in lieu of, a last will and testament. A trust is a document that permits the transfer of ownership of all listed assets from an individual to an appointed trustee. This trusted entity is then given permission to manage and payout assets to specific beneficiaries.
- Heggstad Petition
When a person unexpectedly dies without having the time to list and fund all the assets in a trust document, a probate attorney may file for a petition with the local probate court and request the asset to be included in the trust estate. This petition is known as the Petition Under Probate Code 850. It is popularly referred to as the Heggstad Petition, named after the 1993 case of Halvard L. Heggstad. Should the petition be granted, it can save bereaved family members from the time and cost of going through the full probate proceeding with the court.
- Designation of Beneficiaries
One of the simplest alternatives to probate is designating beneficiaries for your bank accounts and real property upon death through transfer-on-death (TOD) and payable-on-death (POD) clauses. An advantage of this process is that the beneficiary only has rights over the assigned estate upon your death. On the other hand, one disadvantage is that these clauses do not apply to certain accounts. Additionally, a dispute in the presence of substantial evidence may complicate the transfer of wealth to the beneficiary.
- Jointly Held Properties
Properties that are owned by two or more parties are called jointly held properties. If one of the co-owners dies, the property does not become part of the deceased owner’s estate. Rather, it becomes automatically owned by the living owner/s. This often occurs if one spouse dies; the living spouse does not need to undergo probate to continue living in their shared home, for instance.
- Spousal Property Petition
Speaking of spouses, in California, real property acquired by married couples during their marriage is most often considered as “community property.” This means that when one of the spouses dies, the surviving spouse will naturally inherit the deceased spouse’s share of the community property through intestate succession. This occurs unless an alternative beneficiary is clearly stated in the will or trust of the deceased spouse.
Small Probate Estate Process
Aside from the five alternative processes discussed above, there is also another simpler, truncated route you may take: the small probate estate procedure.
Effective January 1, 2020, the California probate law increased the threshold to qualify for “small estate.” Under this provision, you must differentiate between the transfer of real property and the transfer of all assets including real property as follows:
- For estates with assets in personal and real property, the limit increased from $150,000 to $162,500 under the California Probate Code Section 13100
- For estates with a real property only, the limit increased from $50,000 to $55,425 under the California Probate Code Section 13200
If a minimum of 40 days has passed since the death of the deceased person and no one has opened a probate proceeding, then you may file for a small estate affidavit. In this simplified process, you no longer have to go through the full probate proceedings.
Should the estate qualify as a small estate, then all the beneficiaries stated under the will or an heir under intestate succession will inherit the assets from the deceased person. If you want to dive deeper into this procedure, you may want to read the three separate California summary probate procedures for small estates here.
Starting Your Probate Estate Planning
It’s not pleasant to consider, but we never know when our time on this Earth will end. It is, therefore, best to prepare rather than let those we leave behind suffer through probate on top of loss.
Our goal in “A People’s Choice” is to lessen your family’s burden. We offer different types of affordable estate planning protection that cater to your needs. Do not hesitate to reach out at 800-747-2780 for more information or to get started on planning your estate today.
“A People’s Choice helped us throughout our entire year-long probate making the process very easy and manageable while at the same time saving us thousands of dollars in lawyer’s fees. Not only were they extremely friendly and fast to respond to our questions but they made the process simple enough that we hardly ever had to contact the courthouse directly and we even had a hearing done without an appearance. Would highly recommend A People’s Choice to anyone!”
“I am writing to give A People’s Choice my utmost recommendation. I live in New England and found them on the web. After speaking with a staff member on the phone I had the confidence to give them my business. A People’s Choice handled my probate case with great professionalism and knowledge. My case turned out to be more complicated than originally believed and the staff walked me through each step. They always responded promptly to my email questions. In the end, their service was exactly what I hoped for; they saved me thousands of dollars and allowed me to do it from across the country. They were truly a pleasure to work with.”
“I can’t say enough about the level of service and professionalism I received working with A People’s Choice. Emails were always responded to quickly and thoughtfully. They really care about the process and helping you get the best result with no up-selling. Of course, they can’t provide legal advice, but I was referred to an attorney when I needed some questions answered who was very reasonable and easy to get a hold of as well. The process played out according to plan and I ended up saving a lot of money by going with A People’s Choice over an attorney.”
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