FAQs
Q. If I have a loved one or a friend who has recently passed away, what steps do I need to take to handle his/her legal matters?
A. The very first step is to determine if the decedent had any type of estate plan in place (i.e., a Will or Living Trust). Once determined, a qualified attorney who is knowledgeable and experienced in probate and trust matters should be contacted immediately. The attorney will determine if a probate is necessary and will gather the information necessary to start the process. The information the attorney will gather mainly relates to the names and addresses and ages of beneficiaries and living relatives of the decedent and specific information regarding the decedent's assets at the time of death. Based on this information, the attorney can prepare and file the petition necessary to open a probate of the decedent's estate.
Probate can be an intimidating and overwhelming process. It is imperative that an attorney is chosen who can alleviate the burdens associated with the process during this difficult time.
Q. What is Probate?
A. In California, probate is a court-supervised mechanism which transfers assets at death to either:
(1) the named beneficiaries as set forth in a Will; or
(2) if there is no Will, to family members via intestate succession as determined by the Court under California law.
Q. Are there any advantages to Probate?
A. One of the very few advantages to the probate process is that the Court thoroughly monitors the actions of the Executor or Administrator of the Estate therefore protecting the interests of all beneficiaries.
Q. What are the disadvantages of Probate?
A. Probate is a timely and costly process. Attorneys fees and court costs are determined based on the size of the estate and can be substantial. Also, because of the nature of probate, it can take anywhere from 9 months to several years to close. Lastly, because the probate process is overseen by the Court system, all documents, including the Will, are made public and can be viewed by anyone.
Another advantage is that probate provides a cut off period for creditors claims. This can be very important if the decedent has debts or potential claims against him or her.
Q. How can probate be avoided?
A. Probate can be avoided with a carefully implemented estate plan prepared by a qualified attorney who practices in the area. The estate plan is usually centered around a Revocable Trust which is designed to hold assets and pass them to intended individuals or charities upon death. If drafted and funded properly, a Trust can also have significant tax benefits.
For more information regarding estate planning, please click on the link below.
Q. When is a Probate necessary?
A. Generally, a probate is required when the person who passes away holds title to assets in their name alone which have a cumulative value in excess of $100,000. Typically, these assets would NOT include the following:
1. Assets held in joint tenancy (where the remaining joint tenant is still alive);
2. Assets held as community property with right of survivorship (where the spouse was still alive);
3. Pay on death accounts (also referred to as "P.O.D.");
4. In Trust For accounts (also referred to as "I.T.F. or Totten Trust Accounts);
5. Retirement accounts which pass to a designated beneficiary who survives the decedent;
6. Life Insurance proceeds which pass to a designated beneficiary who survives the decedent; and
7. Assets held in Trust.
Q. Where will the probate hearings be held?
A. The probate hearings are in the Probate Department of the Superior Court of California in the county and district where the decedent lived (or owned property) at the time of his or her death.