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When Is Probate Required In California?

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When Is Probate Required in California?

In California, probate is a process that allows an executor to handle the final wishes of a deceased person. It’s usually necessary when someone dies without leaving a will. The purpose of probate is to protect creditors and pass assets from the decedent to their beneficiaries.

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Probate Attorney

California Probate Requirement?

What Is Probate?

Probate is the process of settling a decedent’s estate according to the decedent’s will or through intestacy if no will exists. In California, probate is required for all estates worth more than $166,250.

Probate doesn’t always have to be an expensive process. If you’re working with a qualified attorney who knows what they’re doing, it can be done quickly and efficiently—and at an affordable cost—without too much hassle.

When Is Probate Required?

The following are some of the most common circumstances when probate is required:

When the estate is worth over $166,250

Probate is required when the deceased’s assets are worth more than $166,250. The threshold amount changes periodically to match inflation. If you aren’t sure whether your estate has crossed this threshold, you can estimate it by adding up all of your assets and then subtracting any debts or funeral expenses that need to be deducted from the total value of your estate.

When the deceased owned real property

If you own real property, like a house or business, you need to go through probate to transfer ownership of those assets to someone else after your death. That is true even if you have a will and designate someone else as the beneficiary of those assets. In California, real property always requires formal probate proceedings unless something else is expressly stated in writing (e.g., joint tenancy).

When the decedent did not leave a will

When one dies without a will, that person is said to have died “intestate.” In such cases, there is no way for the heirs to know what property of the deceased should be distributed and to whom, as there are no instructions from the deceased. This means that an attorney may have to be hired to decide who gets what and when it needs to be distributed.

When some heirs are minors

If some of the heirs are minors (under 18 years old), they need someone authorized by law to represent them in court as they cannot represent themselves. The court appoints a guardian ad litem (GAL) to ensure that these minor heirs’ interests are taken care of throughout the probate process.

When there are debts to be paid

Probate is also required when some debts and assets need to be distributed. These include unpaid tax obligations, loans, mortgages, and other financial obligations. If assets have been transferred during life or if you have a trust, probate will also be required to distribute the assets according to your wishes.

When a will is contested

If someone contests the validity of a will in court, it will also go through probate proceedings. In this case, the executor or administrator of the estate may request help from an attorney specializing in estate planning law. The attorney can represent their client’s interests in court hearings and provide legal advice throughout this process.

California Probate Code

If a person has a will, the executor named in it is responsible for carrying out the estate’s wishes. Executors can be family members or professionals. The executor is responsible for paying bills and taxes, distributing property to heirs, selling real estate and other assets owned by the deceased person (the “decedent”), and other administrative duties required by California law.

Anyone interested in the estate should partake in probate proceedings and decide if they want to get paid. All claims should be filed or barred within a certain amount of time.

Each party involved has rights and responsibilities defined by the California Probate Code §15000 through §17000.

The Notice

If you have been appointed executor for a relative who died without a will (probate), you will need to publish two notices about them in the newspapers. One needs to be published where they lived before death and where they died. In addition, this publication should be published at least once more within 50 days after issuance and mailed directly to anyone who may not have seen it due to absence from home on military duty or other reasons beyond your control (e.g., hospitalization).

The notice should include:

  • The names of the deceased person and the executor;
  • A description of all property that belonged to the decedent at the time of their death (including money on hand, personal property, and real estate);
  • A statement that there is no legal requirement to file an inventory or settle any debts after probate has been opened.

Probating one estate at a time

In California, an executor can only be appointed to one estate at a time. If you’re already the executor of an estate, you can’t be given another until the first one is completed.

If your loved ones have named you as their representative in their wills and other estate documents, make sure that they know that this appointment means that there will be no other assignment of your duties for at least five years. This is a serious commitment!

The Right to Challenge

The person next in line to become executor has the right to challenge the executors and approve or reject their representation. Such a right is limited to specific circumstances. The person next in line to become the executor may not challenge an executor after they have been approved by a court unless incapacitated or deceased. This law also provides guidelines for when one can be appointed as an alternate executor.

Why Is Probate Necessary?

Although a necessary part of estate planning, probate can be time-consuming and expensive. If you want to avoid probate entirely, several alternatives can help you do so.

Probate is required by law because it confirms that someone has died and that their estate needs to be administered by a court-appointed person or entity known as an executor or administrator. Without probate, there would be no way for heirs to legally claim inheritance or other assets left behind by their loved ones when they die.

The Duties of an Executor

The duties of an executor include gathering assets, paying creditors, and distributing assets to heirs. The courts often appoint this person as the personal representative or executor of the deceased person’s estate.

Suppose you’re named guardian for minor children or conservator for an incapacitated adult. In those cases, you may also need to file probate proceedings to take care of certain financial matters on their behalf.

The Beneficiary

A beneficiary refers to anyone who receives something from a decedent’s estate. Beneficiaries include individuals, organizations, and trusts. They should be named in the will or trust to receive their estate share. There are two types of beneficiaries: heirs and beneficiaries. An heir inherits under intestate succession laws (the laws that apply when there is no valid will). A beneficiary may also be an heir if they do not inherit under intestate succession laws but have been named in a validly executed will or trust document signed by the decedent before death.

Intestacy and Probate

Intestate is the state of dying without having made a valid will. So, if you’re intestate and die, your estate automatically goes through probate in California. That does not mean that your estate won’t go through probate if you have a valid will. It simply means that an attorney doesn’t need to draft and file the documents required to settle your estate if you have left instructions in your will.

Probate Process

With probate, a court supervises the distribution of assets when someone dies. It ensures that wills are enforced and that the interests of creditors and beneficiaries are protected. Probate can be avoided if you have a revocable living trust with a properly drafted power of attorney.

What happens during the probate process?

The probate process can be daunting for many people, especially considering the number of steps involved. But if you’re organized and understand what needs to be done, this process should go smoothly—even if your loved one has a complex estate.

The first step is to file an affidavit of testamentary with the court clerk’s office. This document should include:

  • The name of your deceased loved one;

  • A description of their real estate property (land and buildings);

  • A description of any personal property they owned at the time of their death.

You’ll also need to file a petition for probate along with an inventory and accounting of all assets belonging to your loved one at the time they died. An executor will usually handle these tasks on behalf of themselves until they are officially appointed as administrator/executor through approval by California’s Probate Court system.

Only once approved can the administrator begin performing their responsibilities as outlined under California law, including:

· Serving as custodian over assets belonging solely within their jurisdiction;

· Paying creditors from funds left by the deceased;

· Selling assets such as real estate property if required due to debts owed before death; 

· Distributing funds according to the wishes specified in writing before dying. 

When You Don’t Need probate

Probate is not required for property that passes by will or right of survivorship. The same is true for small estates and estates passed down through a trust.

Will

Probate is not required if there is a will. A will is a document that indicates what you want to happen to your assets when you die. If there is a will, the person named as executor in the will takes care of all the legal matters involved in gathering your assets, paying off any debts, and distributing assets to those you have named as beneficiaries.

Right of Survivorship

Probate may not be suitable if the assets are attached to a beneficiary or a surviving owner. For example, if the deceased person has left assets directly to another person, then probate is not required. These assets include anything transferred during their lifetime and passed on when they died, such as life insurance policies or annuities.

Joint ownership

Probate is also not necessary when joint ownership of property exists. In California, joint tenancy can be accomplished by a written instrument signed by all property owners (including spouses), a living trust, or a community property deed naming two people as co-owners of real estate located in California. These properties don’t require grantor/grantee transfer forms as there is no need for probate court approval to transfer title between co-owners (as would otherwise be required under such circumstances).

Small estates

For estates valued at $166,250 or less, probate is not required. For instance, you do not have to file a petition for probate if the estate is $165,250. However, if the estate is worth more than $166,250, a petition should be filed with the court and a copy sent to each beneficiary listed in your loved one’s will.

Trust

A trust can be set up to avoid probate. It is common for people to set up trusts for their children or other loved ones. The person who creates the trust is called the grantor, and the one who receives the property is the beneficiary.

The grantor can give away their assets while alive by naming beneficiaries and setting up rules for distributing the property after death. The grantee (beneficiary) cannot use the assets until they have been distributed according to the terms of the trust agreement.

In Summary

Probate is a court-supervised process for administering the estate of someone who has died. Probate aims to ensure that the deceased person’s wishes are carried out and that creditors are paid. In addition, probate ensures that beneficiaries receive what they’re entitled to.

 

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ADDRESS

Hess-Verdon & Associates, PLC
620 Newport Center Drive Suite 1400
Newport Beach, California, 92660
Office: (949) 706-7300 
Toll Free: (888) 318-4430

Copyright © 2022 Hess-Verdon, PLC. All rights reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. The verdicts and settlements listed on this site are intended to be representative of cases handled by Hess-Verdon & Associates, PLC. These listings are not a guarantee or prediction of the outcome of any other claims. The information contained on this website is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.

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Hess-Verdon & Associates, PLC
620 Newport Center Drive Suite 1400
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Office: (949) 706-7300 
Toll Free: (888) 318-4430

Copyright © 2022 Hess-Verdon, PLC. All rights reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. The verdicts and settlements listed on this site are intended to be representative of cases handled by Hess-Verdon & Associates, PLC. These listings are not a guarantee or prediction of the outcome of any other claims. The information contained on this website is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.

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