When a loved one passes away, you’re preoccupied with preparing the funeral while being all confused, sad, and unable to think clearly. In moments like these, the last thing that comes to mind is dealing with legal stuff such as wills and probate. To avoid adding more stress to your life, in moments like these it’s best to hire a probate attorney to take care of everything for you in the proper and rightful way.
Hiring a California probate attorney isn’t complicated at all, but in some cases it can be quite expensive. In order to make the right decision easier, you need to be well-informed about probate meaning, details and circumstances when a probate attorney is the right choice.
Meaning of Probate
By definition, probate is the legal process of proving the validity and authenticity of a will after a person dies. It also refers to the process of administering the deceased person’s estate according to the valid will.
Probate process – How is it done?
When the deceased person has a will, the legal process requires the probate court to first establish the validity of the will. The will, along with a petition for approval, are filed in the appropriate court in the county where the deceased person lived. The clerk of the court needs to approve the will and appoint the executor who is named in the will. If there’s no executor named, then the clerk will assign an administrator. After the will is proven to be valid, the court admits it to probate.
What probate most precisely refers to, is the entire process of administration of the deceased person’s estate according to a will. It also refers to administration of estates that aren’t listed in a will but belonged to a person who is deceased.
Not all wills go to probate. In most cases, when the deceased didn’t leave much in his/her will, a probate isn’t necessary.
A probate is necessary when there is a transfer of large assets and or estate, and when the property that needs to be transferred wasn’t hold in joint tenancy.
When is Probate Necessary
According to probate rules and probate limits, not all cases go to probate.
Assets that are considered “small estate”, whose value is below the California small estate limit, don’t go to probate. Depending on where you live, these cases can sometimes be resolved by filing a simple affidavit by the inheritors. Here, it’s important to know how to determine the estate’s value so you know whether or not it’s below the “small estate” threshold. The California probate code regulates this issue with specific numbers and details.
Other assets that are also exempt from probate, according to probate rules are:
- Joint tenancy assets – when two tenants own a joint asset, and one of them passes away, the asset automatically goes into ownership of the surviving tenant – also known as “right of survivorship”
- Tenancy by the entirety or community property with right of survivorship – as a form of property, this is very similar to the joint tenancy. The difference is that it’s only available to married couples.
- Transfer on death accounts – this refers to bank and brokerage accounts. If a person has accounts in a bank or in a broker house with significant assets on them, he/she can fill out forms to designate a beneficiary in case of his/her death. In the event of death, the designated beneficiary is entitled to all assets without any probate.
- Beneficiary designations – if you have a life insurance or retirement plan, then you can assign beneficiaries to those policies. In the event of death, the assets piled on those accounts are transferred to the beneficiaries also without any probate.
- Living trust assets – any asset that is part of a Living trust created by the deceased, won’t go through probate. In fact, this is why living trusts are created and are quite common in California. However, if the deceased has assets outside of the trust that add up to more than California’s small estate limit, then they will go through probate.
Common Probate Issues
Among most common probate issues are disagreement with the deceased’s will by members of the family and handling the probate tax on the inherited estate.
Disagreements over the will are the most common issue that comes up in probate, especially if the deceased had a large family. Most often, those are the spouses and the children who may not feel like the terms of the will or testament are in their favor.
In such situations, the will is altered. Altering the will is a rather complicated process depending on the reason for making the change. If there’s a dispute over inheriting the estate, then the entire process can be long, painful and expensive.
There are other reasons for altering the will as well. Sometimes, people who are named as inheritors in a will, simply don’t want the estate. In such cases, they often choose to leave it to either their children or to other people.
Whatever the reason, it’s important to keep in mind that altering a will almost always results in disagreements among related parties, so it’s always best to have a lawyer who can advise on the best practice to avoid unpleasantries.
Another common issue people encounter from inheriting assets is inheritance tax. After inheriting an asset, you’re obliged to pay probate tax for it. Probate tax or estate tax, can sometimes change the mind of the inheritor so he/she decides to leave the inheritance. That’s because estate tax can be a surprisingly large amount.
We strongly advise you to have a probate attorney prepare everything properly so you don’t pay even more that needed. We also recommend that you also consult your financial advisor , so you have a clearer image of your financial situation and whether accepting an inheritance is financially wise for you.
Cost of probate
Probate doesn’t have to be costly. Depending on the lawyer you choose, you can be charged by the hour, a flat rate or a percentage of the inherited estate. Depending on the assets you’d inherit, you should choose a lawyer who can help you in a way that is financially suitable to you.
For more information on the actual cost of probate, contact us on our phone number for free consultations: 877-647-9076
- What does a probate attorney do?
The probate attorney is often an estate lawyer, who over many years of mentoring, experience and continuing legal education is eligible to advise executors and beneficiaries on how to settle all the final affairs of the deceased person. They’re responsible for taking their personal representatives through the entire process of probate, from start to finish.
- How long does probate?
If there are well organized records of the deceased’s assets, the process would usually last from 6- 9 months. However, if complications such as contesting the will or unclear records of the assets in question occur, then the process can last considerably longer.
- When is probate necessary?
Probate is necessary even if there’s a will left by the deceased.. This is because even if there was a will, all the assets listed in it owned by the deceased at the time of death, need to go to probate in order to be legally transferred to appointed beneficiaries.
- Is probate a legal requirement?
In most cases, yes. Before the executor named in the deceased’s will can claim, transfer or sell any of the assets listed in the will, the estate must go to probate. Probate makes the transfer of assets from the will to the beneficiaries legal.
- Do I need a probate lawyer?
If you feel confident handling a process that usually takes about 80 hours a week of work on your own, than you might not need to hire a lawyer. Also, if the assets in question aren’t unusual or too large, you might be able to handle it yourself. However, for best accuracy and peace of mind, we recommend to discuss with an experienced and certified probate lawyer.
Call us today on 877-647-9076 for a free consultation and assessment of your needs.