A Brief Overview of the Probate Law in Ca & What it Entails to act as an executor of someone’s will.
Coming to terms with the death of a loved one at times may seem painful. Still, it’s an inevitable part of life that we all would likely face at some points in our lives. Along with the trauma, you’ll still have to undergo some legal process. One of these is the probate of wills and estate.
As it turns out, not that many people understand the probate process. To some, it comes across as frightening or unfamiliar. We’ll be discussing this process in here. This will broaden your knowledge of the process so you can be prepared when you finally have to face it.
What is Probate Law in Ca?
Probate is basically the legal process through which the estate or assets of a deceased person gets distributed, regardless of whether the deceased left a will behind or not. In the event the deceased person left a will, the court still oversees the process of locating the decedent’s assets, settling outstanding bills, whether these are taxes or debts, and thereafter, distribute the remainder of the estate to beneficiaries as their inheritance.
Why Do Estates Have to Go through the Probate Process in most cases?
The probate proceedings usually do a good job of preventing fraud, but most importantly, the process makes sure the legitimate debts of the decedent are paid, as well as his or her heir and beneficiaries.
After a person dies, their assets get frozen until certain conditions are met. The freeze excludes assets that pass by contract, such as life insurance, or accounts with beneficiaries. Probate starts with the court’s authentication and decision on whether the will is valid, with an opportunity to others to speak on the validity of the will. Every person and parties involved will also get informed and those who have a right as heirs or may be affected, can file objections to the admission of the will, and a will contest.
Properties in the deceased person’s name or estate will need to be identified and appraised, which process is called an inventory. Outstanding tax bills and creditor debts would have to be identified, accepted or rejected, and settled as well. There is a claims period for all creditor claims. Once all necessary conditions have been satisfied and accounted for, the court will then issue an order to distribute the remaining assets to the rightful beneficiaries and/or the surviving heirs.
When is Probate Required under California Law?
As it turns out, not every asset goes through the probate process. Legally “small” estate, joint tenancies, payable on death accounts, community properties with right of survivorship, trusts, and beneficiary designations such as insurance policies are usually exempted from the process. California’s threshold for no probate is $150,000.
Although each state has their own laws that govern the processes involved in probate as well as what goes through the legal process, the steps involved are usually very similar in most cases. These laws are outlined in the estate’s “probate codes” as well as the laws for “intestate succession” in the event the deceased left no will behind. California’s small estate affidavit is usually used to collect personal property of the deceased, where the probate estate is valued under $150,000.
Safekeeping of the Will and the Probate in Los Angeles County
We determine if there a will exists first. Because the probate process usually begins with the filing of the will for safekeeping in the local probate court, it is important to identify the local court where the deceased lived before his or her death. This is normally followed by a petition for probate as well as the appointment of an executor. In case there is no will, the court would appoint a personal representative. The term personal representative and executor are meaningful when the court actually appoints someone in that position. Just because you are named as an executor, it does not make you an executor without the court appointing it. These executors would then be issued “Letters Testamentary” that grants them the legal authority to act on behalf of the deceased’s estate.
The technical part of probate process also includes a notice of probate in a local newspaper in the deceased’s local community. Creditors are given a notice that sets the time by which they have to file their claim. Most often, this deadline is missed.. The executor, as well, is required to file an inventory of the assets in the deceased’s estates before the court not longer than four months after their appointment.
Once all taxes and outstanding debts have been settled, a petition to close called the final account and petition for distribution will have to be filed before the court. The estate court thereafter issues an order to allow the executor to distribute the remaining assets to beneficiaries as laid out in the will, or to the surviving heirs at law, if there is no valid will in existence. Although many executors usually forgo their fees, they are entitled to be paid for their services. If you are paid as an executor, you must declare that fee on your income tax return as income
The process may seem challenging but getting step-by-step legal assistance from a qualified specialist attorney can help so much in simplifying the process. However, it’s always good to embrace the process with preparedness and a good understanding of what your probate journey.
Mina Sirkin is an expert in Ca Probate Law and is Board Certified as a Specialist by the State Bar of California in Estate Planning Probate and Trust Law in Los Angels Ca. Call 818.340.4479 to discuss law law and probate in Ca.