“Probate” is a term that refers to the process of settling someone’s estate after they pass away. It requires you to take inventory of the deceased individual’s assets and pay off any unresolved debts that they left behind, before distributing the remaining assets to the rightful beneficiaries or heirs. During probate, the court system will confirm an administrator or executor to oversee the entire process, validate someone’s Last Will & Testament, and ultimately authorize remaining property to be transferred out of the decedent’s name at the conclusion of the process. Of course, the Court will also be the one to oversee and rule upon any potential complications or arguments as they arise throughout the process.
California Probate has no shortage of complexities and nuances – you’ll likely encounter obstacles that’ll cause delays and prolong the time it takes to close someone’s estate (usually 1-2 years from start to finish for routine matters). That’s why our probate attorneys in San Diego want to help prepare you and explain the five things you need to know about the California probate process:
#1 – California Probate Is Necessary to Validate Someone’s Will
Many people leave behind a Last Will & Testament before they pass away thinking it will freely pass property to their chosen beneficiaries. While this legal document details exactly how someone wants their surviving family members to settle their estate, it does not allow the family to carry out wishes on their own. The court system will have to intervene and validate the will before you can begin any estate administration procedures, and a Judge will ultimately need to sign off on distribution of assets after a formal Probate process has been completed if the decedent only had a Will.
#2 – The California Probate Process Can Be Time-Consuming
California probate is a lengthy process in which you have to satisfy multiple legal requirements. You have to file a petition with the courts, lodge the will if there is one, and notify all of the deceased individual’s creditors and beneficiaries. Then, you have to take inventory of the assets and pay a court appointed appraiser for all property before resolving debts and dealing with creditor claims. Assuming no issues arise you next prepare an accounting of exactly what happened during the probate process, down to the penny in terms of all estate finance movement and petition the court to approve the actions. At that point you can also petition to close the estate and distribute remaining assets if no fighting has occurred. This process often involves a hurry up and wait approach where your family simply cannot act for months at a time while waiting on Court approval for certain steps. As such, the average length of Probate for a simple estate where no fighting has occurred is between 1-2 years, with much longer terms not being unusual depending on circumstances.
#3 – Certain Assets Will Transfer Without Being Probated
In California, it’s possible to bypass probate when you place assets in a trust. Trusts are incredibly effective when it comes to dispersing money and property to your beneficiaries without any legal interference. You also have other insurance proceeds and financial accounts that are not subject to the probate process if a proper beneficiary is named on all of the individual accounts. This includes retirement funds, life insurance, and payable-on-death bank accounts. With the right plan and strategy in place, you can optimize how things pass to your loved ones and completely remove the burdensome Court process.
#4 – The Law Determines Asset Distribution When There Isn’t a Will
If you fail to leave behind a Last Will & Testament, the state of California will step in and settle your estate according to the generic laws in place (called intestate succession). This means that property and assets will pass along to your heirs in a way that might go against your actual wishes during probate. This occurs more regularly than you think, and an attorney will always recommend that you leave behind instructions for handling your estate. Always try to avoid Probate at all costs, but at very least have your instructions in a simple will to give actual direction to the Courts.
#5 – Probate Can Cause Family Disputes to Arise
Family disputes over someone’s estate can occur for several reasons and are much more likely to occur if we’re already in Probate Court, as is the case when there is only a Will or no direction at all. It’s not uncommon for a surviving family member to feel left out or that they are owed more because they took care of you, etc. They may believe that the rest of the family is conspiring against them to diminish their inheritance or that someone is hiding assets (no matter your wealth or lifestyle, after you pass everyone assumes you were a multi-millionaire if they are an heir). The slightest things can send parties into their own corners and ignite an unnecessary fight, especially when no direction was left. This can create complications as the legal process unfolds during court-supervised probate. One of the most naïve things a person can think is, “My family would never do that”. No one likes to think their family may fight or that issues would arise, but instead of wishfully hoping it will not occur, put together an estate plan that eliminates the possibility altogether.
The California Probate Process Made Simple
Here at Jenkins & Jenkins in San Diego, our San Diego estate planning attorneys provide comprehensive estate planning services for many different California families. Our goal is to ensure that you can control your future by adequately maintaining your assets and setting aside inheritances for beneficiaries, without ever needing the involvement of a Court.
With so many uncertainties in life, now’s the time for you and your family to prepare for the unexpected. Schedule an appointment with us today, and we can immediately begin drawing up estate planning documents.
Testimonial from Sophia, Satisfied Probate Client in San Diego
Reached out to Michael regarding probate questions and he was very responsive and knowledgeable. He took the time to understand the situation and explained the process and it showed that he truly cared about his client. Michael also worked with me to get powers of attorney set up, he made the process very easy. I also got to meet Caroline, and it’s nice to see them work together to ensure their clients are taken care of. Both of them are very professional but also personable.