You may have heard the term "Probate," but no be clear on what exactly it means. Many people feel frightened by the possibility of probate, which has often been cited as a selling point for why one needs an estate plan. While there are many advantages to having an estate plan, probate is not something to be scared of. California courts make the probate process fairly straightforward, and with the help of an experienced attorney, probate can be easily navigated. Below I've outlined 10 essential facts about estate probate in California.
1. MOST ESTATES GO THROUGH THE PROBATE PROCESS
Probate is the court managed process of distributing the assets of a loved one who has passed away with no estate plan, or only a will.
2. NOT ALL ASSETS ARE SUBJECT TO PROBATE
Assets that have a named beneficiary, such as a life insurance policy, assets held in joint tenancy, and assets that are "Payable or Transferable on Death" are not subject to probate
3. PROBATE TYPICALLY TAKES 6-12 MONTHS
Because of the way Probates work, in specific the 4-month waiting period for creditor claims, a probate generally cannot be administered in less than 6 months in Contra Costa County.
4. THE PERSONAL REPRESENTATIVE MANAGES PROBATE
When there is an executor who is named by a will, they will most likely be appointed by the court as the personal representative. If there is no will, or the executor is unable to act, the court appoints an administrator. Typically, this is the closest living relative.
5. THE PERSONAL REPRESENTATIVE MAY COLLECT FEES
The personal representative may earn a fee for their services, in addition to out-of-pocket expenses incurred for managing and settling the estate. Fees typically range from 2-4% of the probate estate.
6. THE PERSONAL REPRESENTATIVE CAN BE HELD LIABLE
The Personal Representative can be held personally liable for improper management of the estate. They can also be removed if an action is brought by a beneficiary or other individual that clearly demonstrates mismanagement.
7. THE EXECUTOR OF A WILL DOES NOT HAVE TO SERVE
The named executor of a will does not have to serve as the Personal Representative if they are either unwilling or unable.
8. PROPERTY OUTSIDE CA IS A SEPARATE PROBATE
If real property is owned by the decedent outside of their home state, a separate probate must be opened in that state. This is called "Ancillary Probate."
9. CREDITORS HAVE A TIME LIMIT TO FILE CLAIMS
One of the primary responsibilities of the personal representative (or their lawyer) is to properly notice all creditors of the estate. Once properly noticed, creditors must issue their claims to the court within the creditor claim period, typically 4 months.
10. HEIRS MUST BE NOTICED ABOUT PROBATE
CA Law require that heirs and beneficiaries are properly noticed when certain actions (such as sale of real property) occur. Failure to properly notice or handle issues regarding the estate may invite legal action from beneficiaries.
While the probate process is fairly straightforward for a simple estate (1 child, 1 house, for example) - probate can get increasingly complex if there are multiple beneficiaries and assets. I specialize in assisting clients with complex probate in Contra Costa County and Alameda County. Call my Walnut Creek Probate Law Office at 925-322-1763 for a free consultation.