When closing an estate, contacting heirs, dividing assets, and settling debts owed by the grantor are expected parts of the process. For some estates, going through the probate process may be necessary to finalize asset divisions or accounts related to the estate. Depending on the estate, and the assets in the estate plan, this process may be expedited or unnecessary. However, with most estates going through probate, understanding the process is crucial.
What Is Probate?
Probate is the procedure by which a decedent’s estate is legally transferred to any named beneficiaries in the will. The executor of a will typically has to:
- Complete the court paperwork.
- Appear before a judge to demonstrate to the court that the will is valid.
- Name a legal representative who has the power to act on the decedent’s behalf.
- Inventory and appraise the decedent’s property.
- Pay off taxes and debts.
- Allocate the remaining assets per the conditions of the will or to the deceased’s heirs.
Reasons for Probate
The probate process mostly revolves around executing the provisions of a will while dividing and settling an estate. At this time, any debts owed by the decedent are resolved, and the estate is then closed. Depending on the estate, the reasons for requiring probate can vary. Some of the most common include the following:
- Estate Value: Probate is necessary when a decedent’s assets are valued at more than $166,250. Periodically, the threshold amount is adjusted for inflation. If unsure whether an estate has reached that amount, take the total value of the estate’s assets, subtract any debts and necessary funeral expenditures, and then add back in the remaining assets.
- Real Property Transfer: Often, the decedent possessed real estate, such as a home or company. Their estate must go through the probate process to transfer the title of these assets to a new owner. Even if the will identifies another person as the recipient of those assets, probate is still necessary. Unless something different is indicated in writing, such as joint tenancy, formal probate procedures are always necessary for real property.
- Lack of a Will: If someone passes away without a will, they are considered to have died “intestate.” This always requires the probate process. In such circumstances, there is no method for the heirs to determine who should receive the deceased’s property. As a result, it could be necessary to retain legal counsel. They can help determine who receives what assets and when they should be distributed.
- Beneficiaries Are Under 18: If any of the beneficiaries are under the age of 18, they will need legal representation in probate court because they are unable to represent themselves. To make sure that these underage heirs’ interests are protected during the probate procedure, the court will appoint a guardian ad litem, or GAL.
- Debt Settlement: Additionally, probate is necessary when distributing assets and settling obligations. This includes overdue debts, mortgages, and other monetary commitments as well as unpaid taxes. Probate will be necessary to divide any assets following the decedent’s wishes if they were transferred during their lifetime or if a living trust is established.
- Contested Wills: A will can also go through the probate process if its legitimacy is challenged in court. If challenged, the will needs to either be proven valid or replaced with a valid will to move forward. In this situation, the administrator or executor of an estate may ask a lawyer who focuses on probate law for assistance.
Although probate is necessary in some cases, depending on the assets included in the estate plan, it can be avoided. For example, if a living trust is established before the decedent’s passing, they can designate a trustee to divide the assets in the trust among any named beneficiaries. Similarly, establishing joint ownership of certain assets will create an automatic line of succession between the decedent and the person who jointly owns that asset. That person will then inherit it after the other owner passes away. Understanding why the estate is going to probate when it is required will help make the process more streamlined.
Q: What triggers probate in California?
A: The biggest factor in determining whether an estate will go through probate is the value of the estate. According to California law, no probate is required if the entire value of the assets at the time of the decedent’s passing is less than $166,250.00. In these situations, these assets are handed over through a streamlined process.
Q: On what grounds can you contest a probate?
A: The biggest part of an estate plan is the will. If the will is proven to be invalid, this can be used to contest probate and stop any negotiations regarding that invalid will. Once the Petition for Probate is filed, contesting its filing, and filing a separate will contest claim to have a new will validated, can stop the initial process.
Q: What are the grounds for contesting a will in California?
A: When contesting a will, the person raising suspicion about its validity needs to prove at least one of the following:
- The grantor was manipulated into writing the will.
- The decedent’s capacity to write a valid will was impaired (especially if the decedent’s mental state or substance use was a factor).
- The will violates legal provisions that would make it valid.
- There are multiple wills for the decedent.
Q: How do you resolve a dispute in probate?
A: There are three types of settlement conferences for probate:
In addition, parties are free to look into private alternate dispute resolution solutions outside of court. At any moment, the parties may freely agree to private mediation. This can be binding or not. This process can also include the use of discovery referees or an early neutral assessment.
Finding Legal Help for the Probate Process
Seeking legal help can be necessary for properly navigating disputes when going through the probate process. This can be especially vital when dealing with a contested will or unsettled issues between beneficiaries. For those in California, Sweeney Probate Law can help provide counsel for tense probate discussions. For more information on our services, visit our website and contact us today.