As the Baby Boomers begin to age and make their transition, many do not have a Living or Revocable Trust, thus requiring the family of the deceased to initiate Probate Proceedings. In this article, I will discuss the basics of Probate, and the easiest way to navigate through the sometimes year long process.
Before I begin with an explanation of the process, I would like readers to understand that even if you have a Will, you will still need to go through the Probate process. Many individuals have the mistaken belief that if they leave their assets in a Will, their family or beneficiaries will not have to probate- this is absolutely false! Of course there are simplified procedures under limited circumstances (the estate assets are less than $150, 000, the property is left to a spouse or real property of small value), but in most instances, particularly if the deceased owns real property in California, the deceased Will needs to be Probated. The only way to avoid probate, (other than summary procedures discussed above) is to create a Living or Revocable Trust.
The Probate process begins with the Executor named in the Will, or in the case where there is no Will, an Administrator, filing Petition documents with the court and paying the required filing fee (typically $465.00). Notice to all beneficiaries and heirs at law will need to be sent, and publication of the administration of the deceased estate will need to be posted in a newspaper of general circulation where the decedent resided. The Executor and/or Administrator will then gather all assets of the Estate, and begin taking an Inventory of the property.
Many times, property will need to be sold, and if the Administrator or Executor has Independent Administration of Estates Act Powers to sell the property, they can do so without petitioning the court to sell the property (but the Administrator or Executor will also need to send Notice of their actions to all beneficiaries before selling). If not, the Administrator or Executor will need to request the courts permission to do so. In addition, the Executor or Administrator will need to provide for any creditors making a claim against estate by either paying the creditor, or denying their claim.
Notice will also need to be sent to various government agencies, including the Franchise Tax Board (see an attorney to determine what government agencies you will need to contact).
Once the creditor claim period has expired, all debts of the estate have been provided for, an inventory of estate assets has been filed with the court, the Executor or Administrator may petition the court to close the estate, and distribute monies to beneficiaries.
The process of Probate can take anywhere from 6 months, on the short side, to years if there are complicated property issues, or beneficiaries do not get along and litigation ensues. It is important to determine at the outset if you will need an attorney to walk you through the process. Most of the time, attorneys are needed to work through the filing of documents, addressing creditors and managing beneficiaries. Being an Executor or Administrator is not an easy task and should be taken on with great caution, as the Executor or Administrator is acting in a fiduciary capacity and is subject to being sued.
The Probate process can be complicated and time consuming. The best way to deal with Probate (and any legal issues for that matter) is to consult with and hire an attorney. VDG Law Provides comprehensive services in the area of Probate practice, and can walk you through the process.
***The information in this article is provided for informational purposes only and does not constitute legal advice. Transmission of this information or the receipt of this information does not constitute an attorney-client relationship between the sender and receiver of this newsletter. You should not act or rely on any information contained in this newsletter without first seeking the advice of an attorney.This article is the sole property of the Law Offices of Verleana D. Green. Please do not use without our permission. Thank you!