Probate

If an individual passes away with a will or no will in place (and has assets over a certain amount individually linked to his/her name), the family must go through the probate process. This means that the courts are now responsible for overseeing distribution of the individual's estate. The probate process can often be lengthy, costly and emotionally draining on the heirs. Thus, it is important to work with an experienced estate planning attorney to build a personalized estate plan that addresses all the unique aspects of your particular situation.

How Does the Probate Process Work?

The probate process will depend upon the size of the estate, how property title(s) are held and other variables. For example, in California if the estate's value is less than $150,000 the probate process may not be required. However, if the gross estate of certain assets has a value higher than $150,000 and there is no Will or a Will but not a properly funded Living Trust in place, the probate court will take over.

Step 1 - Before a decedent's property can be distributed or passed-on, time basically stands still. The court then sets a probate period, meaning that it halts distributing the assets until legal titles to the decedent's assets/property has been cleared.

Step 2 - The probate court then declares that any creditors who may be owed money can claim interest in the estate. This is done through local newspapers where the decedent resided and gives an opportunity for anyone owed money to come forward.

So why is this so bad? The truth is that probate matters can take years and tend to average nearly one year in California. This becomes extremely expensive over time because not only are you paying for the attorneys but also the Executor (also referred to as the Personal Representative), the court and all the fees/costs associated with its procedures (e.g. publication, filing fees, etc.). It has often been cited and illustrated that at the end of the entire roller-coaster process, a large sum that would have gone to the loved ones gets "skimmed off top" to pay for the aforementioned costs and fees.

Probate Can Be Avoided With a Proper Estate Plan

Please remember, avoiding probate should be an important goal. Also, it should be noted that not all assets are susceptible to probate. There are exclusions such as retirement benefits, life insurance policies, automobiles, the way property is held, etc. and most obviously, assets held in Trust. With that said, it is critical for assets that have beneficiary designations (e.g. life insurance, 401(k), IRA's and other plans) to have the forms relating to such policies/plans be up to date and have beneficiaries designated. It is not uncommon to find that a deceased person's form was blank or that they had listed people that predeceased them. This now can become a problem as an asset generally not subject to probate now becomes subject to probate- since there is no viable beneficiary designated. Also, there are special income tax implications surrounding such accounts/plans and thus it is strongly advised that you discuss this further with the estate planning attorney.