If you are the deceased person’s spouse, child, or parent, you may be entitled to receive assets upon the death of the person. Probate can be a complicated process, and it is important to consult with an estate law firm if you have questions or concerns about the probate process. If you need help with probate law, get in touch with an estate lawyer in Rocklin.
What is Probate?
Probate is the legal process of administering a person’s estate after their death. It includes distributing their assets to their beneficiaries and paying any debts and taxes owed.
What Are the Steps of Probate?
Generally, the process probate goes as follows:
- The executor or administrator of the estate files a petition with the court.
- The court appoints an executor or administrator for the estate.
- The executor or administrator collects the assets of the estate and pays any debts and taxes owed.
- The executor or administrator distributes the assets of the estate to the beneficiaries.
Note: The steps of probate vary from state to state, but generally, the process is similar. Contact us to learn better about your situation.
How Does Probate Court Work?
The probate court appoints an executor or administrator to administer the estate and distribute the assets to the beneficiaries.
What Are Probate Assets?
Probate assets are those assets that are subject to the probate process. It includes all property owned by the deceased person that is not jointly owned, has no designated beneficiary, or is not held
in a trust. There will be a probate assets list that covers all the assets.
Some examples of assets that may be in probate are:
- A house
- A car
- Bank accounts
- Personal property
Do I Need To Go Through Probate?
It depends. If the deceased person left a will, then their estate will need to go through probate. But if the deceased placed their assets in a living trust, probate isn’t necessary.
The probate process can be time-consuming and expensive. It is important to hire an experienced probate lawyer to help you through the process.
Who Are Involved in the Probate Process?
The probate process involves the executor or administrator of the estate, the beneficiaries of the estate, and the court.
The Administrator of the Estate
The administrator of the estate is the person appointed by the court to oversee the probate process.
Beneficiaries of the Estate
Beneficiaries of the estate are the people who are entitled to receive the assets of the estate.
The court is the legal body that oversees the probate process.
What is a personal representative?
A personal representative is a person who is appointed by the court to oversee the probate process. In most cases, the personal representative is an individual who has a close relationship with the deceased, such as a spouse or child. However, in some cases, the court may appoint someone else to be the personal representative if no family members are available. A personal representative is the same as an executor or administrator.
What Are the Estate’s Obligations to Estate Creditor?
The executor or administrator of the estate is responsible for paying any debts and taxes owed by the estate to the creditor. The administrator may use estate assets to pay these debts and taxes.
How Long Does It Take to Deal with Probate?
The time it takes to complete the probate process varies depending on the size and complexity of the estate. Generally, the process can take anywhere from a few months to a year or more.
Factors that Make Probate Last Longer
Some factors that can make probate last longer are:
- A large and complex estate
- Multiple beneficiaries
- Disagreements among beneficiaries
Factors that Shorten the Probate Process
Some factors that can shorten the probate process are:
- A small and simple estate
- All beneficiaries agree on the distribution of assets
- No creditors
How Do You Get Around Probate?
There are a few ways to avoid probate. It includes joint ownership of property, designation of beneficiaries, and setting up a trust.
Is Probate Harder Without a Will?
If the deceased person did not leave a will, then their estate may still need to go through probate. The probate process may be more complex without a will, but an experienced probate lawyer can still help you through the process.
How a Probate Lawyer Can Help You
If you are the executor or administrator of an estate, consider hiring a probate lawyer to help you with the legal process. A probate lawyer can help you with tasks such as filing the necessary paperwork with the court, distributing assets to beneficiaries, and paying debts and taxes owed by the estate.
Probate attorneys are knowledgeable in probate law; they know what steps need to be taken and how best to go about it. They also know how best to communicate with family members and heirs so that everyone understands what’s going on and feels comfortable with it all.
A probate action requires a court order and may take many months or even years to complete. It is different from a will, which is just a document that you create before your death and make it clear how you want your property distributed after you die. If you are expecting to face probate, hire a probate lawyer to help you with the legal process. Contact Filippi Law Firm P.C. now.
What is a small estate affidavit? If you have been a reader of our blog for any period of time, you have likely learned that you want to take the steps necessary to avoid probate. Not just for the excessive cost and time, it takes to proceed through that process, but because of the hassle, it causes your family (see https://filippilaw.com/what-is-probate). However, you may be surprised to learn there are some little-known situations when your estate won’t need to go through this probate process.
First, we must mention that the best solution, and one we often suggest to our clients, is to have a revocable living trust created. If done and maintained properly, this all but guarantees your estate will avoid probate.
Absent you putting a revocable living trust in place, there are still a couple of situations when probate may not be necessary. The most obvious being that if your estate does not have any descendible assets (property able to be inherited) for your heirs. This can happen if you have done extensive estate planning, or if you have simply lived your best life during retirement and enjoyed every cent you saved.
There is also another time when probate may not be necessary. California has a little-known law that allows for the passing of estate assets without the supervision of the court in the probate process. California Probate Code Section 13100 allows for assets in an estate to transfer through the drafting and executing of a small estate affidavit. However, only some estates will qualify.
The most significant qualification to proceed under a small estate affidavit is that the total assets in the estate do not exceed $166,250. This amount is modified by the California Judicial Council every three years in proportion to fluctuations in the Consumer Price Index (CPI), an economic reading that identifies the rate of inflation in our economy.
The next question that needs to be answered is what is included in the sum of a person’s estate. California Probate Code Section 13050(a)(1) answers this question for us. It excludes property that was held in joint tenancy with another, was terminable at death, passed to a surviving spouse under certain circumstances, or was held in a revocable living trust. If you don’t know what any of this means, it’s okay, just give us a call and we can help!
So, if you have followed our advice, and have most of your assets in a revocable living trust, but forget to place a particular asset in the trust, a small estate affidavit is one potential solution to correcting this mistake. That is of course, as long as the total assets left out of the trust are less than $166,250 (or the subsequently adjusted amount) and all the other requirements of the small estate affidavit process are satisfied.
Some of those other qualifications include a requirement that the death has occurred at least 40 days prior, no probate proceeding has been or is being conducted, and of course, that the affiant (the person signing the affidavit) is the proper person to receive the property.
There are other requirements, including having proper identification and attaching a certified copy of the death certificate, but the biggest concern is ensuring you are properly proceeding under this small estate affidavit statute. By signing the affidavit, you are subjecting yourself to personal liability.
It is for this reason that we suggest you consult with a licensed probate attorney to assist you with this small estate affidavit process. While you can always go it alone, the nominal fee you pay to a probate attorney will be a small price for the peace of mind in knowing it was done properly and your risk of liability is reduced.
We can assist you with the small estate affidavit process, so give us a call today and let us take that stress off your shoulders.