Probate
Probate
If you have lost a family member, it is likely that some or all of his or her estate will have to pass through probate. The probate process can be complicated and time-consuming. However, we can hold your hands through the complicated process and make the process go smoothly. Our attorney, Faith Hashemi, can review the estate and advise you as to the most efficient and economical manner to transfer property to the rightful heirs. You can rely on us to inform you of all your options to administer and distribute the estate.
What is Probate?
Probate is a court process which involves collecting a decedent’s assets, notifying creditors, paying liabilities, and distributing the remaining assets to heirs.
Probate proceedings are a court-supervised process that is used to ensure that the estate of a deceased individual— often called the “decedent”—is being administered in a way that adheres to probate law.
During probate administration, a probate judge will determine:
- Whether the decedent had a valid will
- What the value of the decedent’s estate is
- Who the named beneficiaries of the estate are
- How any legal issues or legal disputes will be settled
Once these items are determined, the deceased individual’s estate will be settled, with debts being paid to the estate’s creditors and the remaining assets being passed to the beneficiaries.
Is Probate Always Necessary?
Probate is not always necessary, but it may be required if the deceased person’s will does not name an executor (someone to administer their estate). Likewise, if a person dies without leaving an estate plan or death beneficiary, California law distributes their probate assets to the closest living relative (based on intestate succession). A trust company is usually appointed as the executor to carry out estate procedures in these cases.
What Assets Qualify for Probate?
It may surprise you to learn that not all assets are subject to probate & estate administration. However, many of these have to be specifically planned by the estate holder during their estate planning to bypass probate. Here are some common examples of such assets:
- Jointly owned property/community property
- Life insurance benefits in an insurance company
- 401(k)s and IRAs, if they have a named beneficiary
- Pensions, if they have a named beneficiary or are payable to you under the plan’s terms
- Joint tenants assets
- Assets are held in a revocable or irrevocable trust or in a living trust. Trust beneficiaries can get access without probate.
- Assets within a POD beneficiary account (Payable on Death accounts) or those liable to spousal petition for succession
- Lifetime gift (inter Vivos gift)
- Additionally, if there’s a living spouse, you can avoid formal probate with a spousal property petition. The process requires that the deceased’s final tax returns (usually a personal income tax return) be created before the distribution of the estate property. This matter is especially simple if the spouse is the sole beneficiary.
- Basically, any estate assets that aren’t listed above are subject to probate. In other words, if your loved one didn’t do careful estate planning, it’s likely you’ll have to go through probate. This can include brokerage accounts, social security payments, real estate, bank accounts, and more.
- Even if the deceased did have a will and will out a beneficiary designation form, it is probably not enough to keep the estate out of probate. However, in some cases, simplified procedures may be used if the actual estate or personal property is worth less than $166.250 in 2024.
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