What is probate?
The legal process of distributing a deceased person’s assets and property as decided by the court system (typically to the closest living relatives), after any money that is owed to the government or creditors is paid in full.
Who initiates probate?
The executor of the will is responsible for starting the probate process, retaining an attorney, and taking caring of all financial obligations the deceased person left behind. An executor is typically named in the will, but if not will is available, the probate court will name a close relative to handle the process.
What happens during probate?
A representative, either the executor named in the will or an individual named by the probate court, will be appointed to disperse real and personal property. This individual also collects debts owed to the deceased. The will is validated by the probate court. If there is no will, then the probate court designates a legal heir (usually a close relative) to serve as administrator. A list of assets from the estate are presented to the probate court. Beneficiaries named in the will, or heirs-at-law if there is no will, are notified that the probate process is taking place. Creditors are notified of the proceedings so they can file claims for any debts owed to them. State and federal taxes are paid from the estate. Title to decedent’s property, such as real estate, bonds and stocks, is cleared so that the property can be passed onto beneficiaries or sold.
What is not subject to probate?
Any jointly held property or assets with the right of survivorship (which means ownership is transferred over once someone passes away). However, the property will eventually pass through probate once the surviving owner passes away. Estates with assets valued at under $150,000 and no real property are also not required to pass through probate (depending on the complexity of the estate and assets owned). IRA or retirement accounts with a designated beneficiary and life insurance policies with a designated beneficiary are not subject to probate either.
How long will probate take?
Probate is a complicated issue with many moving parts involved and it can last anywhere from eight months to several years, if the estate is challenged by family members at odds with the decision. Typically, probate will take about a year, but the exact factors for determining a timeline will depend on each person’s unique situation.
When will our family receive property or assets?
The probate court will not enter an order of distribution allowing assets and property to be transferred to waiting beneficiaries until all the correct paperwork has been approved, and all debts have been paid--including court fees, estate taxes, creditors debts and until all stocks and bonds have been cleared. Again, the timeline will depend on many factors and beneficiary’s will have to wait at least seven months after the probate process is started.
Do I need an attorney?
While you are not legally required to retain an attorney during probate, the entire court process is complicated and tedious, and requires a dedicated attorney who understands probate laws and regulations. Most people do not have the time to make court appearances, gather documents and file the correct paperwork, let alone even have the knowledge to know how to do so correctly. Any missed deadlines or incorrectly file documents will only cause a huge delay in the probate process and keep your family’s assets tied up in court for much longer than they need to be.
How do I retain a probate attorney?
Finding a trusted and experienced attorney can be difficult. At Elder Law Services of California, we first provide a FREE consultation in order to make sure our team fits your needs and wants out of a probate attorney. Once we both decide the partnership is a good fit, our attorney will put together a plan of action to best fit your family’s unique situation. Once you are ready, give us a call at (855) ELDER LAW to schedule a FREE consultation. We look forward to working with you.