Probate
I am a licensed real estate professional that concentrates his business activity in Probate, Trust and Conservator sales. I understand the process of settling an estate through probate, or by way of family trust. I gained this experience through education, training and personal experience.
I have experienced firsthand the stress that the administration of probate and trust estates can cause. I also have experience dealing with those same issues in my capacity as a real estate agent.
Whether your clients are operating under court approval or under independent powers, I am experienced with both processes. I pride myself on being compassionate and professional, so that when you entrust your client’s affairs to me, you can be assured that they will be taken care of in an open and aboveboard manner. Also, if you do not have a trust and own real estate, you should get one.
Probate
In California, Probate is handled in the California Superior Courts; it is a court procedure that includes transferring a deceased person's assets to the beneficiaries listed in their will, proving the validity of the will; inventorying and appraising the estate property; paying any debts or taxes (including estate taxes); distributing the property as directed by their will or state law if there is no will.
If a loved one passes away, and probate is necessary, the Court will need to appoint someone to manage the estate. "Personal Representative" is the generic legal term used to describe the “Administrator” (if there is no will) or “Executor” (if there is a will) appointed to oversee an estate. The Personal Representative is responsible for administration of the will and for initiating and maintaining communication with beneficiaries of the estate.
The process of probate administration is made substantially easier, and safer, when a California probate lawyer is made part of the process helping to guide your estate through the system. It is good to hire an experienced probate attorney to assist clients with California probate administration and make it as easy as possible to navigate the probate process.
What is Probate?
Probate in California is a court supervised process that is used to wind up a person's legal and financial affairs after death, usually overseen by probate lawyers in California. Probate includes gathering a deceased person's assets, proving the validity of the will; appraising the estate property; paying creditors (including estate taxes); and then distributing the property as directed by will or state law if there is no will.
California probate is the process of determining the rights and obligations of a person’s legal and financial matters after their death. Probate is the way to transfer assets, resolve debts and clear title so the decedent’s assets can get to the rightful heirs. Often, it is a complicated and time-consuming process. For estates larger than $100,000, court supervision is helpful, in order to oversee the process and approve the distributions.
How is a Probate Started in California?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the Executor Chosen?
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
How does the Executor Get Paid?
California law provides that the Executor gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.
Could I Be Held Personally Liable For Making a Mistake as an Executor?
Being an Executor is a big responsibility. California’s probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court.
If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.
In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process.
How is Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to California probate and intestate laws, which state that a person’s estate will be distributed in the following order:
1. Spouse
2. Children
3. Parents (if you have no children)
4. Siblings (if you have no children or parents)
Does Probate Avoid Estate Taxes?
No. Estate taxes, sometimes referred to as “the death tax” or “the inheritance tax,” need to be paid unless advanced tax planning has been done. The executor of the estate is responsible for making sure all estate taxes are paid. For 2009, estates valued at $3.5 million or less are not subject to estate tax. For 2010, there is currently no estate tax; for 2011, estates valued in excess of $1 are subject to estate tax.
Who is Responsible for Paying Estate Taxes?
Under the Internal Revenue Code, the estate tax is collected from the estate of the deceased. Depending on the terms of the will, the estate tax may be paid from the probate estate only, or also from a living trust, life insurance proceeds, and other assets passing directly to beneficiaries outside the probate estate.
If there is a Will, is there still a Probate?
Many people mistakenly think that by having a will they are avoiding probate. However, just the opposite is true. A will guarantees probate because the purpose of probate is to prove the validity of a will.
How big does your Estate have to be to Require Probate?
Estates that have a gross value of over $100,000 of personal property (cash, stocks, and tangible personal items) normally require probate. However, any estate that includes real property worth more than $20,000 requires probate. These values do not take into account any debts that are owed on the property. There are some ways to avoid probate, including beneficiary designations, jointly held assets, and community property.
Is there a Probate for Small Estates, Less than the Minimum Amounts?
California has a “Small Estate Summary Procedure” which allows a shorter and faster transfer of a decedent’s assets without the time and expense of a formal Probate proceeding. Typically, only estates less than $100,000 can utilize the Small Estate procedure.
What is a Probate Asset?
Assets held in the decedent’s name only are typically assets that will have to go through a probate. Assets that transfer by beneficiary-designation, such as life insurance, annuities, 401k's, and IRA's do not go through the probate, so long as the beneficiary is still alive. There are special provisions for a surviving spouse to avoid formal probate if the spouses held title as community property.
Does a Will Avoid Probate?
No. In fact, having a will guarantees there will be a probate. A will must be probated.
How does Jointly Owned Property fit into Probate? Jointly owned property is also referred to as joint tenancy. Joint tenancy includes a “right of survivorship”, which means when one of the owners dies, the remaining owner automatically becomes the sole owner of the property. Probate is not required in this case. If by chance the death of both owners occur simultaneously, then probate is required.
How long does Probate take?
The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.
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