PARENTS & HOMEOWNERS: MY 7-STEP ESTATE PLANNING PROCESS WILL PROTECT YOUR HEIRS
From Creditors, Predators & Bad Choices, And Will Help You Become a (Bigger) Hero to Your Family!
When is Probate Required in California?
If a person dies and leaves behind an estate, property, or assets in California that needs to be transferred to a beneficiary, probate is required. If a decedent’s property is left behind, the probate process provides distribution of that property to the heirs of the decedent. Survivors may also open probate proceedings if the decedent owed debts upon passing or if they need to set a deadline for creditors to file a claim on owed debts.
Not all property goes through probate. California has simplified procedures for transferring “non-probate estates” worth less than $150,000. Also, several easy ways exist to distribute property to descendants while avoiding probate, but they require prior planning.
Why Does Probate Exist?
There are several reasons for the existence of probate. Probate is the legal process following the death of an individual that concerns asset distribution. During probate, any of the following can occur:
- Assets are transferred to intended beneficiaries or heirs of the estate.
- The Last Will and Testament is authenticated.
- Creditors of the estate are notified, providing them with the opportunity to file claims against the estate for debts owed by the decedent.
- Challenges and litigation may be levied against the will’s legitimacy.
- The decedent’s assets are identified, located, and secured.
- The court and beneficiaries are given an account of all income and assets received during the probate administration.
- Final income taxes for the decedent are calculated and paid.
- Income the estate earned during the estate administration is taxed.
- Gift and estate tax owed by the estate are paid.
Without the probate process, any number of the preceding items may go unaccounted for, leaving the distribution of assets a murky situation for the descendants to clear for themselves.
When is Probate Not Necessary in California?
Probate may be considered unnecessary after the owner of an estate passes for any number of the following reasons:
- Assets are non-probate assets: Non-probate assets bypass the probate process and are distributed immediately after the owner’s death. Non-probate assets may include
- Trust-owned property or investments
- Retirement accounts
- Accounts labeled “payable-on-death” or “transfer-on-death”
- Certain joint-owned accounts or property, following rights of survivorship
- Life insurance policy proceeds
- Estate consists of only personal property and/or real property worth less than $150,000
- The decedent’s spouse or domestic partner does not wish to go through probate: A decedent’s spouse or domestic partner may ask their probate lawyer to file a Spousal or Domestic Partner Property Petition in the court of the county in which the decedent’s property resides. This document results in a court order determining:
- The spouse’s/partner’s share of community property
- Which part of the spouse’s/partner’s share of community and separate property belongs to the surviving spouse/partner
How Long Does Probate Take?
Under California law, an estate’s personal representative (executor or administrator) must complete probate within one year from the date of appointment. The representative may have 18 months to complete it if they file a federal estate tax. If the probate is not completed in that time, the personal representative will be made to file a status report explaining to the court what is left to do and how much time it will take to do so.
The process can take several years to resolve if the will’s validity is contested or if the estate is overly complicated or extensive. Other factors can complicate the process. For this reason, it is always good to consult with estate lawyers. To schedule a consultation with our law office, call (805) 244-5291.