What is Probate?
Frequently Asked Questions About Probate Law
Probate is a court-supervised proceeding for administering a person’s assets and debts following their death. During probate administration, all of the decedent’s debts (e.g. medical bills, credit cards, loans, taxes, etc.) will be paid or settled. Decedent’s remaining assets are then formally transferred to any beneficiaries designated in the decedent’s will or to the decedent’s legal heirs when there is no will.
How Do I Know if Probate is Necessary?
A formal probate may not be needed in California if the total value of decedent’s assets are under certain limits or the only heir is a surviving spouse. Additionally, prior to death a person may structure their assets so that probate administration can be avoided. Real property, bank accounts, IRAs, stock portfolios, vehicles, and other assets can sometimes be directly or automatically transferred upon the owner’s death if title was held jointly with another person or if the decedent executed a formal beneficiary designation. Another common way people transfer their assets without probate is through a living trust. When a decedent’s assets cannot be transferred through any of these alternate methods, a probate is usually necessary.
Even when a decedent’s property can be transferred through alternate methods, it may still be necessary to commence probate proceedings. For example, the decedent may have been a party to a lawsuit when they died, or otherwise have a claim or dispute, which can only be prosecuted, defended or maintained through a probate proceeding. A probate can also be advantageous when the decedent has substantial debts because probate rules require creditors to follow strict procedural guidelines for asserting a claim against a decedent’s estate (including a limited claim-filing period) or their claims may be barred.
What is the Process?
Probate administration in California is initiated by filing a petition for probate with the superior court. The petition asks the court to appoint a personal representative and admit the decedent’s will, if any, to probate. It identifies the decedent’s heirs and other interested parties, and gives an estimated value of the assets to be probated. Once appointed, the personal representative then takes control of all of the decedent’s property, has the assets appraised, pays or settles the decedent’s debts, pursues or defends any claims, pays all attorney’s fees and other administrative expenses, and then makes the final distribution of the decedent’s assets to the heirs or beneficiaries. When appropriate, the personal representative may sell or liquidate the decedent’s property to pay debts or administrative expenses, or to carry out distributions.
The entire probate process in California typically takes one year or more to complete. It is not uncommon for a probate to last a year or more. The length of the proceedings depends on numerous factors, and there is really no way to predict exactly how long a given case will take. If a summary or expedited procedure is available as mentioned above, the process will normally take less time than a full probate and involve less fees and expense.
What is Needed to Start the Process?
Before consulting with an attorney, you should be prepared to advise the attorney as fully as possible of the nature and extent of the decedent’s assets; the names, addresses, ages, and relationship of all heirs and beneficiaries; and whether or not the decedent had a will. This often necessitates a diligent search through a decedent’s personal files and records, as well as any safe deposit boxes. Many attorneys will also require a cost retainer to cover the initial expenses, including the filing fee, publication fee, and any bond premium for the personal representative’s bond. The attorney will then prepare and file the initial petition, which is normally set for hearing within 8 weeks, at which time the personal representative is appointed and probate proceedings are commenced.
How Can Ajalat & Ajalat, LLP Help?
Ajalat & Ajalat, LLP has been handling probate matters for more than 30 years and is experienced in handling both simple and complex estates. Our general litigation experience makes us well-suited to handle estates involving legal claims or disputes, including contested probate matters such as will contests. Our attorneys provide clients with direct personal contact and attention throughout the entire proceeding and assist with every step of the administrative process. We can represent parties whether their interest in the estate is as a personal representative, an heir or beneficiary, or contestant or other third-party claimant.
Ajalat & Ajalat, LLP can also assist clients in avoiding probate altogether when possible. We can assist in transferring non-probate assets, such as property that is jointly owned or transferable on death, to a designated beneficiary. We also routinely provide clients with premortem planning in preparing a comprehensive estate plan, including a living trust.
Disclaimer: The information set forth above is only a broad and general description of the probate process, and is limited to probate administration and estate planning in the State of California. The specific needs, procedures, and services applicable in a given case may differ from the general description.