California Probate Law Firm
Probate is a legal proceeding that is used to wind up a person’s legal and financial affairs after death. In California probate proceedings are conducted in the Superior Court for the county in which the decedent lived, and can take at least eight months and sometimes as long as several years.
Results Driven California Attorneys, Representing Clients Throughout Probate and in Estate Litigation When Necessary
Property with an aggregate value in excess of $100,000 which passes by will or intestate succession is subject to probate administration.
To initiate probate proceedings, the person who is nominated in the will as executor files a petition with the superior court asking that he or she be appointed as executor. If there is no will, the probate code provides a list of persons who have priority to petition to become administrator. The will also is filed with the petition, and notices are sent to the heirs and/or relatives to let them know when the hearing will be held. If there are objections to the petition, or if the validity of the will is contested, the hearing will be used to resolve any problems that have arisen. The executor then makes an inventory of the estate’s assets, locates creditors, pays bills, files tax returns, and manages the estate assets.
When all of the duties of the executor are completed, another petition is filed with the court asking that the estate be distributed to the heirs. If this petition is granted, the estate administrated is completed by distributing the assets to the heirs and filing final tax returns.
Advantages and Disadvantages of Probate
Advantages of probate: the proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor. Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate. The executor is required, in most cases, to prepare an accounting and report of the executor’s activities.
Disadvantages of probate: the cost is usually much higher than would be required for the administration of a living trust for an estate valued at the same amount. It usually takes longer to probate an estate than to administer a trust. Most estates don’t need the supervision of the court unless disputes occur.
Spousal Property Petitions
Spousal or domestic partner property petition is where the surviving spouse or registered domestic partner collects the assets of the deceased partner without formal administration, namely probate. Prob C §§13500-13660.This process can be utilized when a husband or wife dies intestate leaving property that passes to the surviving spouse under California’s intestacy laws, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse. Prob C § 13500. This aforementioned law also applies to registered domestic partners. Fam C § 297.5(c).
First, the surviving spouse or domestic partner files a petition in the superior court in the county in which the decedent spouse’s or domestic partner’s estate may be administered. Prob C §13650; Fam C §297.5(c). A court hearing is set for the petition, and notice of the hearing is sent to everyone who is mentioned in the will (if there is one) and all of the heirs of the decedent. If the person complies with all the legal requirements for filing the petition, the Probate Court will sign an order confirming the transfer of the assets of the deceased partner to the surviving partner.
There is usually no testimony required and spousal property petitions are often on the court’s “pre-approved” list, meaning that unless someone asks that the case be heard, there will be no hearing and the court will sign the order. The spousal property order is then recorded with the County Recorder in each county in which the real property is located to put the surviving spouse’s ownership of the property on the public record. Copies of the order are also given to financial institutions and brokerages to clear up any ownership questions concerning other assets
Problems With Procrastination in Getting a Will or Trust
A number of problems may arise when a person dies without a will or trust, including:
- Higher estate taxes. The estate might have to pay estate taxes that could have been avoided with an estate plan. As a result, heirs and beneficiaries will receive substantially less from the estate.
- Probate. The estate might wind up in probate, which could have been avoided. The estate may be stuck in probate for a long time, and inheritances will be delayed. Statutory probate fees are expensive, and they could have been avoided with a living trust.
- Intestate succession. When someone dies without a will in California, the laws of intestate succession are used to determine who will receive the assets of the estate. In general, the deceased person’s nearest relatives will inherit the assets. If that person wanted some other person or charity to receive all or part of the estate, those plans cannot be carried out.
- The surviving spouse may not inherit the entire estate. Many people believe that if they die without a will or trust, their spouse will inherit what they owned. This is true for community property, but the surviving spouse will inherit only half or one-third of the separate property of the other spouse in the certain circumstances if there is no will.
- Trusts for children. A will or trust can set up a trust to provide funds for the support, education, and other expenses for young people. If there is no will or trust, any trust that is set up by the court will probably end at age 18, leaving a young person with a windfall inheritance that may soon be spent. A will or trust can provide a much higher age for distribution of the trust, and can also specify the terms of the trust and who the trustee will be.
- Probate Code Section 13100/ Small estates law. Starting in 2012, estates of decedents that do not exceed $150,000 do not need to be probated in California. An affidavit or declaration signed under penalty of perjury at least 40 days after the death can be used to collect the assets for the beneficiaries or heirs of the estate. No documents are required to be filed with the Superior Court if the small estates law (California Probate Code Section 13100 to 13116) is used. Assets included in the $150K limit are Bank accounts, brokerage accounts, stock, bonds, mutual funds, other investments, real property valued at up to $50,000, and similar assets that the decedent owned in his or her name only, unless they fall under an exception
- What has to be done to collect the assets? An affidavit or declaration must be signed under penalty of perjury. The affidavit or declaration must include the information described in California Probate Code section 13101. The affidavit or declaration is then given to the institution that holds the assets, and the assets are transferred to the person who signed the affidavit or declaration. Creditors of the decedent are paid from the assets, and the remaining assets are transferred to the beneficiaries or heirs.
- When should the small estates law not be used? This law should not be used for estates with substantial indebtedness that might exceed the value of the assets. Estates that are insolvent or close to insolvency should be probated instead to take advantage of Probate Code provisions that determine which creditors will be paid from the estate, and how much. Probate should also be used in situations in which the beneficiaries or heirs do not agree on how the assets should be distributed.
Probate Lawyers Serving the Bay Area, Including San Jose, Sacramento and Oakland
Schedule a free, no-obligation consultation with a San Francisco probate lawyer today. We are happy to book appointments to meet at your convenience. Located in San Francisco, we accept cases in Oakland and communities throughout the Bay Area and Southern California. Please call 415-441-8669 or contact our team online via e-mail.