One common question is: Does every estate need to go through probate, and how long can estate distribution take? R. Dustin MacFarlane, probate lawyer and founder of Senior Citizen Lawyer, explains how probate works in California.
Estate planning can be an emotionally loaded topic for many people. Apart from the natural fears and difficult decisions involved in making a will and appointing an executor, seniors may feel uncertainty regarding the legal process.
What Is Probate?
In California, the probate process:
- Determines whether a legally valid will exists
- Ascertains the deceased person’s heirs or beneficiaries
- Evaluates the worth of the decedent’s property
- Ensures the payoff of the estate taxes and court fees
- Finalizes property ownership transfer to beneficiaries and heirs
According to state laws, if the decedent did not name an executor, the probate court will appoint an estate administrator to collect assets, pay any estate taxes, debts, and other expenses, and take care of estate distribution among beneficiaries.
Does Every Estate in California Go Through Probate?
The short answer is no. Assets may not need to go through probate court if:
- The deceased person had owned the property jointly with a surviving spouse
- The asset is part of a living trust established during the deceased person’s lifetime
- The deceased person had named a payable-on-death beneficiary for a specific account
- The net value of the probate estate (estate minus assets that don’t need to go through probate) is less than or equal to $166,250
If a surviving spouse or domestic partner inherits assets, the probate court can approve a simplified procedure with a Spousal Property Petition or Domestic Partner Property Petition, a document that usually enables property ownership transfer in one court hearing. Otherwise, a probate case can take 9-18 months and even longer.
The Stages of Probate in California
A probate process in California typically includes the following stages:
1. Filing a Petition
To initiate the probate proceedings, the will executor or a family member should file a petition with a probate court in the decedent’s county of residence. The probate court will typically schedule a hearing within 30 days.
2. Official Notices
After the probate court schedules a hearing, the executor or administrator needs to publish an official notice in a local newspaper at least three times. The executor also has to send the notice to all legal heirs, beneficiaries, and known or potential creditors.
3. Proving the Will
If the decedent left a will, the court will require proof that the will is legally valid.
4. Collecting Assets
The will executor or estate administrator will have to collect all probate assets, including real estate, vehicles, stocks and bonds, brokerage accounts, and mutual funds. Then the executor will need to file an estate inventory, including an appraisal of relevant property, with the probate court.
5. Paying Creditors
Once creditors have received notice of the deacedent’s passing, they have four months to submit their claims. After that period, any claims will usually be void.
6. Paying Estate Taxes
After paying creditors, the executor will need to discharge all the decedent’s bills and federal and state estate taxes. The estate must be completely clear of all debts and taxes before distribution.
7. Closing the Estate
The estate administrator will provide an account of all legal actions settling the estate (payments to creditors and tax authorities, etc.) and file a petition with the probate court. The petition will also include attorney and executor fees if relevant.
Once the court approves the petition, the executor can distribute the remainder of the estate to the decedent’s heirs.
How an Estate Planning Attorney Can Help With Probate
People may wish to avoid probate to save on court fees, cut down on the property transfer time for heirs, and prevent exposure of sensitive documents in public records.
With some timely planning, an estate lawyer can offer strategies to avoid the probate court, including living trusts, joint ownership, and payable-on-death designations.
If an estate does require probate, a probate lawyer can help streamline and possibly shorten the legal process. The lawyer can:
- make sure that all the required documents comply with probate law
- obtain appraisals for real estate assets
- assist with paying debts, bills, and taxes
- file with a probate court
Senior Citizen Lawyer: Probate Attorneys in Fair Oaks, CA
The probate process can last over a year in California if the estate involves debt, tax disputes, or uncertainty about the deceased person’s will. A knowledgeable probate lawyer can help make sure that the right people get the right assets at the right time.
Our free guide, The 7 Reasons Why You Need an Estate Plan, answers many questions senior citizens have about end-of-life planning. Call 916-603-2782, leave your name, mailing address, and phone number, and the guide will be on its way to you shortly.
Click to listen as R. Dustin MacFarlane explains what to look for in an estate planning attorney on his podcast, Legally Speaking.
To schedule a free consultation with Senior Citizen Lawyer in Fair Oaks, CA to answer your specific questions and meet your unique needs, call (916)-674-2066.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
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