If you have lost a family member as an adult, then you’ve probably heard the term “probate.” You may wonder, what is probate law? How does it apply to my situation? To those who are unfamiliar, probate can seem quite overwhelming and difficult. However, it doesn’t have to be.
Below is a breakdown of the California probate process and how to navigate it. This article should provide some insight whether you are a newly appointed executor (personal representative) or thinking of drafting a will for yourself.
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What Is Probate Law? Important Terms
Before we get into the meat of this article, check out this list of terms. These will be used throughout the article and throughout any probate process. Understanding them will be immensely helpful as you navigate through probate.
- Personal representative: An individual appointed by the court or the deceased’s will to administer and manage the deceased estate.
- Executor: A personal representative that is appointed when a valid will is present upon the death of the decedent.
- Administrator: A personal representative appointed by the court if no valid will is present upon the decedent’s death.
- Estate: The collection of all assets and property subject to probate belonging to the recently deceased individual.
- Beneficiaries: A listed individual who can benefit from the legal right to own assets from a deceased’s estate.
- Heirs: Family members of the deceased who are entitled to assets from the deceased’s estate according to their will.
- Will: A written document that instructs how to administer and distribute an estate once the owner of the estate passes away.
- Testator: The individual who has written the will intended for probate.
What Is Probate?
Let’s start with this basic question. Probate is a legal process created to administer the estate of a deceased person to its legal heirs and rightful beneficiaries. It’s the analysis and transfer of estate assets and property previously owned by a deceased person.
Probate involves dividing and distributing the assets and real property to the listed beneficiaries or heirs in the deceased’s will. This involves:
- Collecting and organizing all personal property and probate assets that belong to the deceased person
- Settling any expenses and debts owed by the estate
- Distributing the possessions to the listed heirs or rightful beneficiaries
The legal process of probate is essential in determining who the heirs and beneficiaries with a legal right to components of the estate are. It’s also crucial for identifying the assets and property of the estate that are subject to probate administration. Probate administration is not always necessary but is usually imperative so the estate can be settled.
The Probate Process
To start the process, the will needs to be validated by a probate and family court and a personal representative must be appointed according to the wills & estate planning laws. The personal representative or executor named in the will is then responsible for administering the deceased person’s property to beneficiaries and ensuring that all duties are carried out correctly. First, they have to provide a death certificate and will to the court and be officially appointed.
As part of their duties, the personal representative must post a public notice of the probate and inform creditors and heirs. Potential creditors must get informed of the probate’s proceeding, but if they are unable to make their claims promptly (or their claims are of a lesser priority than that of the beneficiaries or other creditors) their claims may be dismissed. Normally, after creditor claims are handled, a surviving spouse of the decedent has the legal right to the largest share of the deceased estate. That is followed by children as well as other close relatives and family members.
At the end of the probate process, the estate is closed, the personal representative is relieved of their responsibilities, and everyone can focus on other aspects of losing a loved one.
What Is Probate Law, and Why Is It Important?
That brings us to the question, “What is probate law?” When the estate owner dies, their assets and real property usually have to be evaluated by the California probate court. The probate and family court is responsible for providing a final ruling on the formal administration process of the deceased person’s estate.
Probate law as administered by the court becomes especially important if there is conflict. Sometimes, creditors and potential heirs dispute the instructions of the will. They may argue that they have the legal right to more than what has been given to them in the formal probate proceeding.
In these circumstances, the probate and family court hears complaints and determines who has a valid claim or not. The probate court then makes the necessary changes to the final administration of the probate estate.
Why Do You Need a Will?
The formal administration process normally begins with determining if the deceased has left behind a valid will. A will allows you to determine and identify the beneficiaries or heirs who will own your property at death. It contains direct instructions on how you wish for your estate to be administered, including measures for any tangible property and intangible property in your estate. In some cases, there may be other valid documents with instructions on how the decedent would like their real estate distributed or other assets disbursed after their death as well.
If you’re currently thinking about estate planning, consider creating a will and reviewing it every five years to make sure that it is still in sync with your intentions and assets. Many people postpone making a will; after all, thinking about death is unpleasant. In fact, there are plenty of cases where a deceased individual has not left behind a will to enable the distribution of property to beneficiaries. However, what many forget is that by writing a will, you prevent any problems from happening with your estate under normal probate procedures.
Without a will, your estate may be declared an intestate estate. This means the distribution of your property is based upon intestacy laws rather than your specific wishes. It gives you less control of the process and leaves the door open to more arguments. It can also make the probate process a lot more complex and time-consuming since the names, instructions, and assets aren’t listed. Let’s take a look at how the process looks both with and without a will.
Probate With a Will
As mentioned above, the personal representative is normally named in the will. This person is responsible for the distribution of assets and property of the estate. By writing a will, you appoint your personal representative and give them clear instructions. This makes the probate process easier for everyone to whom you intend to transfer your property upon death.
Providing a valid will ensures that all intended heirs, beneficiaries, assets, and property are all identified and recognized in a court-supervised process by the California probate court. This makes the division and distribution of property move smoothly and allocates your assets to the correct individuals who are entitled to it. Providing a valid will also save time for all involved with your estate. So, it may take some time and effort for you now, but it makes everything much easier for your loved ones later.
Probate Without a Will
Intestate succession is the most viable procedure when no will is left behind. In an intestate estate, your heirs and beneficiaries acquire property through intestate succession instead of according to your will.
When there is no will that can name a personal representative, California probate law provides a list of candidates who are capable of administering the estate. If probate is required, the court will choose someone from this priority list.
In most cases, a surviving spouse or domestic partner is the first choice for the position of a personal representative. Children who are legally recognized as adults are normally the next choice, followed by other relatives and family members.
It is also important to check what real property in the deceased’s name doesn’t need probate application due to alternative measures set by the decedent. Such assets that do not require an application for probate are called non-probate assets. Let’s explore that a bit further in the next section.
Does All Property Have to Go Through Probate when A Person Dies?
Most people leave behind assets that don’t need an application for probate. So even if a probate proceeding is carried out, not all property and assets need to be listed before a probate judge. This is beneficial since assets that are not subject to probate can be transferred to those with the legal right to it much faster based on the existing probate codes.
Put simply, probate applies to assets and property that are solely owned by the deceased individual (no form of joint ownership exists). This can include any of the following:
- Real estate
- Vehicles in the decedent’s name
- Bank accounts
- Personal property
- Estate funds
- Credit cards
These assets that don’t have to go through probate when the deceased individual was married and owned property jointly, or made alternative arrangements to entirely avoid probate:
- Retirement accounts
- Brokerage accounts
- Pay-on-death accounts
- Life insurance policy
- Life insurance proceeds
Basically, a standard legal proceeding is not necessary if the deceased individual’s estate is arranged to avoid probate. The assets and property generally transfer to the listed beneficiaries immediately after the death of the decedent.
Is It Necessary to Hire a Probate Lawyer?
Most estates don’t need the services of a probate lawyer. While hiring one can provide a sense of assurance that probate is being carried out correctly, it’s a pricey measure costing hundreds of dollars per hour. There are other ways to make sure you are conducting probate optimally.
There are very few cases where hiring a probate lawyer can help. This mostly occurs when an estate is contested, there are complicated aspects to the estate probate, or the estate doesn’t have enough funds to cover its debts and expenses. The rest of the estate probate process can be conducted personally with the right knowledge and guidance.
What Is Probate Law, and Who Can Help?
Instead of shelling out for a probate attorney, you can make use of a legal document assistant service like A People’s Choice. This service involves an experienced professional who is capable of preparing legal documents for their clients within a specific period of time. The services of a legal document assistant are mainly aimed at the client who wants to handle matters on their own and without the expenses associated with a probate lawyer.
Legal document assistant services are a great alternative to managing a wide range of legal issues. Generally, hiring a legal document assistant ensures you get the legal help you need without overpaying. In many cases, it saves you time as well. If you have been appointed the executor of a will or are in the midst of estate planning but are not too sure about how to fill out paperwork, then a legal document assistant can help.
Going through a probate case is challenging, and most people have difficulty navigating it without professional assistance. A People’s Choice is a leading non-attorney probate service in California. We offer help with preparing and processing all required forms to complete the probate process in the quickest time possible. Contact the representatives at A People’s Choice for high-quality non-attorney help today!
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