The impact of a loved one passing is intensely personal. That may be one reason so many people are concerned about the public nature of going through probate.
Courts oversee the probate process, and the point of probate is to properly distribute assets. This is done either based on the terms of the will or on California’s intestate laws.
If the deceased had a will, this process entails following the deceased’s wishes. In the absence of a will, probate means following state law concerning how the deceased’s assets should be distributed to surviving family members.
Not every will and estate is exposed to probate court. Even if a will is filed with the probate court, it still doesn’t always mean you’re required to go through the probate process. The law typically insists on the will’s being filed with the court, regardless of whether or not probate will happen. This should happen upon the passing of the will’s creator, who is known legally as the testator.
How Do Wills, Probate and Estate Law Work?
An understanding of wills, probate and estates is necessary for proper estate planning.
Definition of the term “estate”
The term “estate” describes everything owned by a person. That means everything from real estate and investment accounts to personal property and insurance. It’s unusual for someone to die without some kind of estate.
Definition of the term “will”
The term “will” refer to the instructions left by someone looking to control the distribution of the assets in their estate. It needs to be written, and it needs to be written in legally binding terms. It’s generally a good idea to have a will, but state law does not mandate that you create one.
State law describes the requirements necessary to execute a valid will. “Executing” the will means making it legally valid. One of the most important requirements is to have the will witnessed and signed. It’s also required that the person creating the will have the necessary mental capacity to do so.
Definition of the term “probate”
The legal meaning of “probate” refers to the legal process whereby a court distributes assets. The assets must be solely owned by the decedent, must not have a designated beneficiary, and must not have been put into a living trust.
The court verifies which assets meet these requirements, ensures that outstanding debts have been paid, and approves the distribution of what’s left. Either the will or state law (if there is no valid will) controls which heirs get which assets.
If There Is a Will
If a person has a valid will, probate involves the following:
- The executor (who is named in the will) files the necessary documents with the probate court. These filings include the will, a copy of the death certificate and any other pleadings or required documents. If the executor fails to do this, state law provides a list of other parties with the power to file. This generally includes close family members or parties with a stake in the proceedings, like creditors.
- The probate court analyzes the documentation provided to ensure that it’s valid. If it is, it empowers the executor to take the actions laid out in the will. The court will then issue something called Letters Testamentary to the executor to grant the necessary power.
- The executor is responsible for the inventory and valuation of the assets in the estate. They must also identify the remaining debts that must be paid from the estate.
- After paying the debts, the executor distributes the assets to the beneficiaries, which are named in the will. After that, the estate is closed, and the probate is complete.
How long it takes to complete the probate process depends on many things. Larger estates may take longer to probate. Disputes over the validity of the will may cause delays. Finally, issues specific to state law or probate court systems may affect how long it takes to finish.
Can Probate Be Avoided?
There are several reasons an individual or family might wish to avoid probate. Avoiding probate can save time. Probate is also a matter of public record, so privacy concerns may come into play. It may also be possible to cut down on fees and other expenses by avoiding probate.
Trusts, accounts with named beneficiaries, forms of joint ownership, and the use of affidavits can all help keep assets out of the probate process. A few common tools for avoiding probate include:
- Placing assets in a trust: It’s possible to avoid probate for your estate by transferring assets into a trust. This process comes with its own fees and guidelines. It also may require the creation of a pour-over will, which can cover any assets that aren’t properly transferred during the trustmaker’s life. This would then put those assets through probate.
- Designating beneficiaries: Certain accounts, like IRAs, 401(k)s and pensions may directly name beneficiaries and thus avoid probate. Similarly, transfer-on-death (TOD) and payable-on-death (POD) accounts avoid probate in most cases.
- If assets are held under joint ownership with a right of survivorship, those assets do not go through probate.
- Under California law, if an estate is under a certain size ($184,500 in 2024) and doesn’t include real property, it doesn’t have to pass through probate. This small-estate exception is subject to changes in the law.
Opening Probate Is Not the Same as Filing the Will
Under California law, it’s possible to file a will without necessarily opening the probate process. Probate takes place only when the necessary conditions are met.
If the value of the estate is less than $184,500 (2024 data) after any assets passed to designated beneficiaries are removed, probate will not be necessary. This is specific to California law as outlined in the California Small Estate Affidavit process. It also requires that the estate contain no real estate with a value of more than $61,500 (in 2024).
California law requires that a will be filed (“lodged”) with the court. The will’s custodian (the person who has the will) is responsible for making sure the will is lodged with the court within 30 days of the willmaker’s death. The reason for this is to make sure the will isn’t lost. Lodging the will can also help alleviate problems that might arise if the will is challenged in the future.
Failure to file a will can have serious consequences on an inheritance. If the probate process goes forward and no will is filed, distributions will follow the laws of intestate succession in California. This is unlikely to align with the terms of the will, which indicate the decedent’s true preferences.
Questions about filing a will or initiating the probate process can be complicated. Talk to an experienced probate attorney for the guidance you need to proceed smoothly.
Writing a Will to Avoid Probate
If you’d prefer to avoid the probate process, your estate plan should be crafted with that in mind. First, you can use probate-avoiding methods like trusts and named beneficiaries. You can also have a plan that avoids or mitigates the problems that would arise if the estate does end up going through probate.
A will can grow stale over time. Changes in your assets or your family structure can necessitate an update. You may have new members of your family to account for, or your chosen executor may no longer be the best choice. Any of these issues could cause disputes or lead to your will’s being contested, so it’s important to address these updates.
Even if your family hasn’t changed, new laws are passed every year that can affect your estate. In general, it’s a good idea to review your estate plan, including your will, every three to five years.
Your estate plan should reflect your wishes and help further your legacy. At the Law Office of Janet L. Brewer, we can help create an estate plan that will meet your needs and prevent problems for your beneficiaries. Contact our Los Altos offices or call 650-325-8276 today.
