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Understanding the Probate Process in California

When a person passes away, their assets must be disbursed according to their estate plan and, when applicable, state laws and probate. At LA | Estate Plans, our probate lawyer in California helps executors of Wills or beneficiaries of an estate through the probate process. Starting with identifying estate assets and ending with the distribution of assets and inheritances to the beneficiaries.

Schedule Your Peace of Mind Planning Session to learn more.

What Constitutes Probate in California?

Probate is the process by which a deceased person’s assets and belongings, known as their estate, are passed on to their heirs and successors. It depends on your jurisdiction, but most matters related to wills, estates, conservatorships, and guardianships are handled by probate courts.
Both the probate process and outcomes can look very different, depending on whether the decedent had a valid Will at the time of death.

The Early Stages of Probate

The probate process begins when the decedent passes away. A petition is filed with the proper court to have probate opened. The next step is to identify the executor or personal representative of the decedent’s estate. 

  • If there is a Will, an executor will likely be named in it.
  • If there is not a Will, a probate judge will nominate one. 

Once the executor is approved or appointed by the court, the executor must:

  1. Notify the heirs;
  2. Publish notice for any creditors;
  3. Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
  4. Secure all assets.

How probate proceeds depends on whether there is a Will or not.

Probate with a Will

If the decedent died with a Will, the Will must be found, filed with the court, and authenticated before its terms are put into action. This process often involves a court hearing where parties named in the Will and parties not named but who would have inherited but for the Will are in attendance. During this hearing, an interested party may contest the Will.
If there are no challenges to the Will, the executor must first pay off all debts of the estate. Once creditors are paid, the executor distributes the remainder to the beneficiaries in accordance with the Will.
If the Will is challenged, then another hearing may be set. The challenger has the burden to prove the Will’s invalidity. Challenges are often based on allegations of undue influence, fraud, or misrepresentation. Challenges are also brought forward when there is believed to be another Will invalidating the Will offered to probate court.
If the court decides the Will is valid, the executor can pay debts, bills, and applicable taxes, and distribute assets. If the court decides the Will is invalid, it will apply the state’s intestacy laws. On the other hand, if the court determines the other Will is valid, it will allow the executor to apply the valid Will (as opposed to the invalid Will).

Probate without a Will

If there is no Will, the decedent is said to have died intestate. This does not mean their assets will not be inherited, it just means their property will pass to their heirs through their state’s intestacy laws.
Once the executor has located all the decedent’s assets and notified and paid the creditors, the probate judge will apply the state’s laws of intestacy and distribute the estate to the decedent’s heirs.

The End Stage of Probate

Once debt and bills are paid and the remaining assets are distributed, the executor will submit receipts and records of everything to the court. At that time, the executor will ask the court to close the estate and release the individual from the role of executor.

Do You Need a Probate Lawyer in Los Angeles?

Whether you need a probate lawyer depends on how well the estate plan was set up. Regardless, a probate lawyer offers important services that can help speed up the probate process. A probate lawyer can help with the:

  • Collection of proceeds from life insurance policies
  • Identification and securing of estate assets
  • Appraisals for the decedent’s real property
  • Payment of bills, debts, and applicable taxes
  • Resolution of any income or estate tax issue
  • Preparation and filing of all documents required by a probate court
  • Management of the estate checking account
  • Transfer of assets to beneficiaries 

If you decide to try a DIY Will first, keep the following five tips in mind:

  1. Define who your family members are. For example, if you brought children into a second marriage, make sure who constitutes “family” in your Will.
  2. Assign and direct the executor to pay debts and expenses, including anything from credit cards to personal loans to funeral expenses.
  3. Make specific bequests or gifts so that there is no confusion about who gets what.
  4. Provide a catch-all clause for assets that you do not specifically give away.
  5. Finally, be specific about people and property as much as you can. Wherever there is any ambiguity there is also room for a challenge.

That said, in the least, it is a good idea to have an attorney review your last will and testament to make sure it’s in compliance with state and federal laws.

Contact a Probate Lawyer in California Today

We are here to help you with your estate plan so that it survives any challenge during probate. If you are the executor or beneficiary of an estate, we can also guide you through the probate process. If you have questions, Schedule Your Peace of Mind Planning Session with LA | Estate Plans today.

 

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