Probate is the court-supervised process to transfer your assets at your death to the beneficiaries named in and according to your will. It also provides for the disposition of creditors’ claims who have claims against your estate at your death.

At the beginning of a probate, the executor of the will files a petition with the court.  After the publication of notice, and after a hearing, your will is admitted to probate. If you die without a will (“intestate”) your estate is still subject to probate and the court will appoint and “administrator” to handle the probate. A statutory procedure to transfer assets according to your will can be used without a formal court-supervised probate administration if the assets owned at death do not include an interest in real estate or exceed $100,000. 

There are advantages and disadvantages to Probate.  The advatages are that you are assured that the actions and accountings of your executor will be reviewed and approved by the probate court. Also, the probate court is used to resolving disputes about the distribution of your assets in relatively short order and according to defined rules. 

The disadvantages of a probate include the fact that a minimum of nine months is required from beginning to end where as distributions can be made pursuant to a living trust more quickly than in a probate proceeding. The mortgage will need to be paid durring the probate period in order to avoid foreclosure.  Another disadvantage is probate is public and your estate plan and the value of your assets become a public record. Also, because lawyer’s fees and executor’s commissions are based upon a statutory fee schedule, the expenses may be high.

Do you have property vested in your own name?  Do you have cash, investments and savings accounts held in your own name that total more than $100,000?  If you answered yes to either of these questions, then you will go through probate. 

You will want to avoid probate when possible, as it takes a considerable amount of time, it’s expensive, and it’s a headache.  Additionally, probate is a public or court supervised process and anyone can access the details of your various holdings and how they are distributed.

You can avoid probate by having an estate plan prepared.  An estate plan will place your assets into a living Trust and upon your death and allows your property to be distributed quickly to your heirs. This distribution is usually made without any expense, trouble, or public record.

Prior to death, your estate plan is effective when you are incapacitated or incompetent.  The durable power of attorney and an advance care directive are other important parts of an estate plan.  Both of these documents permit whomever you assign to manage your personal affairs and to make important health care decissions for you if you are unable.

Weare are recogonized as one of the top 100 estate planning firms in the nation.  Please contact us to discuss these and other benefits related to your estate plan.

“Know all men by these presents, that I, Elizabeth H. Colt, of the City and County of Hartford and State of Connecticut, widow of Samuel Colt, late of said Hartford, deceased, being of sound and disposing mind and memory but deeply conscious of the uncertainty of human life, do make, publish and declare the following to be my last will and testament…”

So begins the will of Elizabeth Colt, widow of Sam Colt, maker of the Colt .45. This article by Daniel D’Ambrosio, which features Ms. Colt’s will, brings up a couple interesting issues for anybody thinking about estate planning. 

The first is that Elizabeth died in 1905, more than 100 years ago, and yet her will is still available for perusal by anyone who might choose to request it.  This is because a will, once filed with the probate court, becomes public domain—even a century later.  This is convenient for your distant descendents who may have an interest in genealogy, but it might not be so convenient for your more immediate family.  It is not unusual for grieving relatives to let heightened emotions run away with them and believe themselves less loved when they find out that there has not been an equal distribution of property. A trust, on the other hand, remains as private as you choose it to be.

Another item of interest is the fact that the trust Elizabeth Colt set up more than 100 years ago was not only successful in carrying out her wishes at the time, but is still in existence today, continuing to work and carry out her charitable goals.  The Colt legacy lives on, not only because of Sam Colt’s invention and industry, but also because of Elizabeth’s foresight and philanthropy.

The holidays are the perfect time for family reunions, family bonding, family fun …and, according to the Wall Street Journal the perfect time for parents and children to talk about family finances, family estate plans, and family decisions about end-of-life issues. After all, there are relatively few times each year in the lives of most families when everyone is gathered in the same place.

“While there’s no need to try to answer difficult health-care or legal questions on Christmas Eve,” says author Tom Lauricella, “the holidays offer a chance to start important conversations.”  Lauricella points out that the holidays offer not only a chance for parents and grandparents to discuss some of these issues with their grown children, but also a chance for grown children to reassess how their elderly parents or grandparents are faring—and issue just as important as a discussion of retirement or estate planning.

So this year, along with the egg-nog and presents, families might want to consider the gift of peace of mind that comes with a bit of frank talk, surrounded by the love and cheer of the season.

Sorrow, emptiness, sadness and loneliness are over whelming emotions in themselves to deal with when losing a loved one. Probate is yet another obstacle many people face when trying to heal from tragedy – and it’s all too often unnecessary!

Estates valued in excess of $100,000 are ‘probated’ when a person dies without leaving a properly drafted and funded living trust which ‘owns’ that individual’s assets and where a designated beneficiary for those assets is not named. Unfortunately, this is a very common occurrence. Probate Court is then left to oversee and decide who has a right to inherit the existing property. This can be catastrophic, and needlessly costly.

Probate can also take a very long time to complete if you do not have the assistance of competent counsel. Simply getting a date on the Court’s calendar, just to get a routine motion granted, can take months. And if your motion is not done correctly, the Court can keep continuing your matter until you get it right. A process that should take 7 - 9 months can often take years if you do not choose the right attorney to represent you.

Along with the time delays, probate can also be a public forum in which people adverse to one another tend to ‘air their dirty laundry’. Siblings who have harbored ill will towards each other, often look to ‘even the score’ in a Court of law, causing yet more delay, a drain on finances, and unwanted emotional toll.

Probate is not a simple process to be handled efficiently through a ‘do-it-yourself’ handbook. Each California Superior Court has its own local rules and requirements for probate filings and administration, which vary depending upon the jurisdiction. Numerous required and timely filings must occur in order to meet Court guidelines. Creditors must be dealt with in a certain fashion. Proper authorities must be notified. One false move can be costly.

Don’t make the unavoidable mistake of going through probate. Attorney Jeff Matsen is a recognized professional in this field of law, and is experienced in successful estate planning. If you have questions on how to avoid probate, or what to do should you find yourself in that position, please call 877-PROBATE (877-776-2283).