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Is Probate Needed If There Is a Will?

Probate will

One of the last things a family grieving the recent loss of a loved one wants to go through is a complex stint in probate court. As a result, many people establishing an estate plan find themselves wondering if probate is necessary or if there may be a way to allow their family to avoid it. Every state has different rules regarding the probate process, and the state of California is no exception. Fortunately, it is sometimes not necessary to go through the process of probate if the proper plans and information are in place before your passing.

Here is what you should know about probate in California and how implementing a will or other estate planning documents may affect your family after your death.

What Is Probate?

Probate is the legal process of assessing, collecting, and re-distributing the property and other assets of someone who has recently passed away. Probate considers every part of a person’s estate, including tangible assets like a home, fiduciary assets like bank accounts and retirement funds, and debts like credit cards, loans, and taxes. Surviving beneficiaries typically approach the probate process by consulting with a probate and trust attorney to help assess the assets and debts of the individual who passed.

Probate court begins by validating any existing document left with the individual’s estate planning attorney, usually a will. If an executor is named in the will, they can prove its validity and will then become responsible for providing the court with a list of assets and debts held by the decedent. The executor will ensure all outstanding debts and taxes are paid before distributing any remaining assets to the beneficiaries named in the will. If no will exists, the court must appoint a personal representative and distribute the estate according to California intestacy laws.

Is Probate Needed If There Is a Will?

Since one of the major responsibilities of probate court is to validate the deceased individual’s will, California probate is often necessary if there is only a will in place. A will is a document that outlines the wishes of the deceased individual to be put in place once they pass, including the distribution of assets, the guardianship of any minor children, and more. In most cases, it must be approved by a court for the executor to follow through with the outlined plans.

However, a will may not need to go through probate when the estate is small, meaning the overall assets of the estate are less than $166,250. Similarly, distributing assets outside of the will and ensuring willed assets are less than $166,250 can help your family avoid probate. Keep in mind that if your will contains errors, probate court must assess its contents and make a distribution determination. If you do not provide a will at all and your estate exceeds California small estate laws, probate will be necessary to determine your beneficiaries and distribute assets not covered by the estate planning strategies below.

Ways to Avoid Probate in California

You can help your family avoid probate altogether or reduce the time your estate will spend in probate. Strategies to avoid probate typically involve either distributing your assets before your death or minimizing the size of your willed estate. There are a few ways to do so:

  1. Establish a Trust The most effective way to avoid probate is by placing your assets into a trust. A trust is a document that is set up to describe exactly what you want to happen to the included assets after your death and assigns beneficiaries for each asset. As the trustor, you must name a trustee that will then hold the responsibility of distributing your assets after your death. Your property is automatically distributed to the listed beneficiaries, skipping the probate process.
  2. Joint Tenancy Ownership Property that is held as joint tenants or considered community property from a marriage can hold “right of survivorship.” This means that the property and assets that were once owned jointly are automatically transferred to the surviving partner. Joint tenancy ownership allows the property in question to skip the probate process.
  3. Payment or Transfer on Death You can designate a beneficiary to receive the contents of bank accounts and certificates of deposit upon your death with a payable on death indication. Similarly, you can create a transfer on death deed to ensure a beneficiary receives any real property upon your death. Retirement accounts and the like usually allow you to name a beneficiary that will automatically take control of the funds held within.

How Long Is the Probate Process?

The length of the probate process depends heavily on the size of the estate and assets that are being assessed in your case. In the state of California, the probate process must remain open for at least 4 months to allow creditors to submit any records of debt or other claims and receive payment. Any will documents put in place by the deceased must be assessed by their attorney and the court, and the executor must compile a list of property and other assets subject to probate. Before distribution of these assets, any outstanding debts and taxes must be paid.

California law requires the executor to complete the probate process within one year, beginning with the date the executor was appointed. However, since the IRS has a full nine months to notify the executor of any federal taxes due, California extends this deadline to 18 months. If the process is not completed by this date, the executor must provide notice to the court regarding its status and how much more time is needed. At this point, your beneficiaries may request another executor, but this can add more time to the process.

Finding a Probate Attorney to Help You Through the Process

Probate is a complex, often stressful process and occurs during one of the most emotional times of a person’s life. At Huber Fox, we understand just how daunting probate can be. Our experienced probate and trust attorneys can work with you to help your family navigate probate as smoothly as possible or even avoid the process altogether. For estate planning services that protect your assets and your family, contact Huber Fox to get started, learn more information, or request a consultation.

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