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Four Ways to Avoid Probate

What is Probate?

There are four basic ways to avoid probate in California. Probate is the court-supervised process that occurs after someone passes away, even if they left a will. It ensures the estate is distributed in accordance with their wishes, and all taxes and debts are paid in full. The executor or attorney representing the estate begins this process, and a court then authenticates the will, authorizing the distribution of the estate to proceed.

Why Avoid Probate?

Time and money are the two main reasons to avoid probate. The court deducts its own fees, and like all court proceedings, this process can be expensive and drawn out, especially if the will is contested. There are other reasons to avoid probate; it’s a public process, meaning anyone can search records to access information on the value of an estate, and personal financial affairs.

How to Avoid Probate

The only way to avoid probate in California is to plan for your assets to transfer directly to your heirs. There are four main ways to accomplish this.

  1. Trust Agreement
    Assets placed in a trust are transferred directly to the named beneficiary. It is no longer necessary for a trust to be handled by a third party. The person who creates the trust may also manage it, until the time of their death.
  2. Right of Survivorship
    The right of survivorship doesn’t apply to bank accounts, but when two individuals share the title to a property through “joint tenancy,” full ownership can be transferred to the surviving party.
  3. Designation of Beneficiary
    Life insurance policies and retirement accounts fall under the Nonprobate Transfer Rules in California. Funds in these types of accounts are transferred without passing through probate.
  4. Operation of Law
    California Multi-Party Account Laws determine who owns the remaining money in a bank account after the account holder is deceased. Funds are transferred to a new account for the survivor and avoid probate.

If you have questions regarding the probate process in California, or any other estate planning needs, please contact Lewman Law for further information and assistance.

Filed under Probate Tips

The Impact of Probate on an Estate

 

If you’re wondering what the impact of probate on an estate is, it’s likely you know of an estate in probate now, or have been appointed an estate executor. Let’s define probate and talk about what it does and doesn’t do.

 

How Do We Define Probate?

Probate is the process that transfers legal rights to property from the estate to the beneficiaries. Any assets that don’t legally pass to beneficiaries automatically are subject to a court proceeding to take these assets out of the deceased person’s name and transfer them into the names of his rightful heirs and beneficiaries.

Examples of items that pass without probate are life insurance proceeds, bank accounts with payable-on-death designations, some retirement accounts, and some forms of real estate ownership pass directly to named beneficiaries by operation of law. This is because there’s already a legal framework to handle transfer of these things to named beneficiaries.

Items that require probate proceedings to transfer ownership to a living beneficiary are referred to as probate assets. This can include cars, personal belongs, antiques, art, or other other assets.

It’ important to note that opening probate is not automatic when filing a will with the courts. These are two separate actions, though often done together.

 

Creditors Are Affected by Probate

It’s unlikely that a person dies with zero unpaid bills. Opening probate shortens the amount of time a creditor has to file a claim against the estate. Without probate, creditors have one year to file for payment from the estate. Once there is an official executor or personal representative as part of the probate process, creditors have only four months to file a claim. After that any request for payment can be rejected.

 

Some Cases Don’t Require Probate

Probate is sometimes legally important, but not always. People frequently don’t bother to open probate when there’s nothing of value to transfer or when all items of value are in a trust, or a joint account. These types of accounts can often avoid probate.

Even when probate is not necessary, the filing of the will remains required by law.

Filed under Legal Services, Probate Tips

Common Estate Management Mistakes to Avoid

 

Being asked to be the executor of an estate is a big deal. People you love (and some you don’t) are counting on you to create order in a tough time. Often the person asked to serve as executor is trusted, but inexperienced with this type of undertaking.

 

There is a very long list of ways one could mismanage an estate, and if the only thing on the line were reputation, that would be very different. But probate and disbursements are governed by law, which makes this an area that needs accuracy and compliance. As a result of many factors, estate management solutions are often needed to prevent mismanagement.

Things that can go wrong include:

 

Not Officially Recording the Will

After a death, the most recent known will must be submitted to the court so that the executor can be certified by the court. This must happen before anything else, so it’s important to find the most recent will quickly and schedule an appointment with the probate court.

 

Ignoring Creditors

There is an order to events with disbursements. Until the creditors have been paid, none of the estate assets can transfer hands. This means that beneficiaries must be patient, and the executor of the estate cannot buckle under pressure. It’s their legal obligation to hold all assets until the last creditor has been paid, and then disburse the remaining assets next.

 

Not Finding & Protecting Assets

It’s the executor’s obligation to identify, locate, and protect the assets of the estate. This can take some research, and you may need to pay storage facility fees, or retrieve things that are in someone else’s possession. It’s the estate manager’s duty to take care of these things so that they lose no value between the passing of the decedent and their eventual disbursement.

 

Flunking at Finances

Many times estate manager’s mismanage funds. One easy way to do that is to fail to collect debts owed to the deceased, like back pay, social security, or pension income. All of that must be collected and taxes must be filed on it.

Most states also allow executors to receive “reasonable” payment from the estate for their services. What this amount is will be decided for you by the court. Keep impeccable recordkeeping, and don’t mix estate funds with any other funds. You cannot live on property owned by the decedent without paying market rent.

 

Giving Stuff Away

Many times the small things that aren’t mentioned specifically in a will are given away. This goes for things that you assume won’t be mentioned specifically in the will, too. They tend to go casually to friends and family members who might like them. This may seem okay, but it’s not. Assets of the estate can only go to named beneficiaries, or legal heirs. If you disburse outside of those groups, you may owe out-of-pocket money to the beneficiaries, who are the legal owners of that property.

 

There are far more opportunities to bungle being an executor than we can outline here. If you need guidance or estate management solutions, we’re here for you. We offer probate and trust administration services to make sure that your bases are covered and the process is carried out smoothly, legally.

Filed under Probate Tips

Probate Process

Navigating the Probate Process in California

Probate is the process of verifying a will in court and accepting this will as the last testament of a person who has passed away. Undergoing the probate process and proving the validity of a will is the first step in distributing the assets and estate of a person. In California, the probate process can vary depending on the will or estate plan, and going to probate court may or may not be required. Here we take a look at the probate process in California, and what you may need to do when submitting a will for probate.
Executor is Appointed

The first step is appointing the executor of the will. This person may be named in the will, otherwise, the court will appoint an executor who may be the surviving spouse or adult child of the deceased. The executor is responsible for gathering the estate assets and distributing them according to the will, while also paying any debts, bills, or taxes. The will must be filed in the county where the deceased lived.
Filing the Petition

After the executor is appointed, a petition for probate must also be filed with the California Superior Court in the county where the deceased lived. After this is done, the court will automatically schedule a hearing within 30 days.
Notifying Creditors and Heirs

After the petition is filed, a notice of hearing will need to be published at least three separate times in the local newspaper in the area which the deceased lived. This helps to inform potential creditors who may have interests in the proceeding. Notices should be mailed to all potential creditors who are known, along with anyone who is named in the will and any other potential heirs.
Paying Creditors and Taxes

Those with valid claims to debts must file an official claim for these, and if determined valid, these debts will be paid from the estate. This includes bills, taxes, and funeral expenses. In California, creditors must submit claims within four months of the executor appointment.

The executor must also pay Federal and California estate taxes. Taxes must be paid before the estate is distributed, or personal liability could fall to the executor. While it is best to be proactive and plan to reduce estate taxes with an inheritance attorney before a person dies, working with an experienced estate attorney afterward can help you manage asset distribution and tax payment more efficiently.
Closing The Estate

In closing the estate, the executor should give a full account to the court of all actions taken in regard to the proceeding. A petition can then be filed with the court to close the estate. If there are no objections, the Court will issue an order to distribute assets to beneficiaries and heirs.
Navigating The Probate Process

The probate process in California can be complex, particularly when managing a large or diverse estate. An estate attorney is experienced and qualified in ensuring you get the best result from the probate process, navigating the proceedings with ease.
Is Court Really Necessary?

In cases where the combined value of assets is below a certain threshold or where assets are excluded from probate, going to court may not be necessary. In such cases, a beneficiary can use a simple affidavit to claim assets. California’s small estate limit can allow you to settle an estate without probate. This may also apply to assets that are included from probate which include joint tenancy assets, retirement plans, payable-on-death (POD) bank accounts, real estate transferred by a transfer-on-death deed, or transfer-on-death brokerage accounts. You should consult with an expert estate-planning attorney if you think you may qualify for California’s small estate limit.

If you need to go through probate court, the court will issue ‘Letters Testamentary’ which allow the executor to take possession of all the assets that are subject to probate. A list of all assets will be compiled and filed with the court.

The California probate process is an essential part of inheriting the assets of someone who has passed away. The experienced probate attorneys at Lewman Law can help you navigate this complex process with ease and assurance that everything will be handled properly; contact us for help today.

Filed under Probate Tips