If you are dealing with the loss of a loved one, then you may also be handling that loved one’s estate. There are many legalities that must be addressed before the estate can be distributed to beneficiaries. Maybe you are preparing your own estate plan. When it comes to the probate process, you may be asking: is probate mandatory in California?

No one looks forward to planning for the end of their life, but without a plan, your loved ones will suffer. Without it, your family is suffering from not only the pain of your loss but also difficulty in obtaining your estate as it goes through the probate process. This is why estate planning is a very loving thing to do for your family.

It is not a requirement to hire a probate attorney, but you may be at risk without one. When you seek an Oceanside probate lawyer, you are making sure that you are following the laws and filing all required documents. They also can serve as an advocate to objectively present the facts to the court or break up disagreements that arise amongst beneficiaries. A probate lawyer can easily guide you through the probate process.

What Is Probate?

Probate is a process that begins after a person’s death. The probate court then looks at the individual’s estate and decides how it will be divided amongst beneficiaries and heirs. The court also determines the worth of any assets, as well as how they will be given to those beneficiaries and heirs.

Before this can happen, however, a legally binding will must be discovered. This will states who is to be the executor of the estate. The executor is in charge of all aspects of the estate’s assets, debts, and any other financial responsibilities. In the case that no will has been created, then the court appoints someone as administrator of the estate. Overall, this legal process can take years to complete.

Beginning the Probate Process

A petition for probate must be filed to begin the process. Other forms, such as a petition for probate of will and letters testamentary, may also be necessary. If a will exists, the administrator must send the original will to the probate court clerk as well as a copy to the executor of the estate 30 days after the death.

When Is Probate Required in California?

Typically, probate is required to begin the distribution of an estate. If the estate’s value is less than about $166,000, then a simpler legal process under California law can be used. But if the value is larger than that amount, then a complicated probate must take place.

There are cases, however, where probate may be avoided. An estate that avoids probate is one where assets, bank accounts, and life insurance policies have named beneficiaries. When there are named beneficiaries, assets will be transferred to those individuals without having to go through the probate process.

The only exception to this is real estate property. If real estate is part of the estate, there is a chance of it passing immediately to the surviving spouse.

Reasons to Avoid Probate

As stated earlier, most estates must undergo the probate process in California. However, there are ways to avoid the probate process. Below are several reasons why it may be better to avoid the process if possible:

• Probate is expensive: Because this legal process takes place in court, this usually means that a probate attorney must be hired. It also involves paying an administrator or executor of the estate for completing their part of probate. Throughout the process, there are also court fees that may total thousands of dollars by the time it is finished.
• Probate causes a delay in estate distribution: As there are several documents that the probate court must sort through, there can be a significant delay between the time of death and the time that beneficiaries obtain the estate’s assets.
• Probate shares private information with the public: During the probate process, the estate’s assets, its monetary value, and its beneficiaries are made public.
• Probate reduces your control over the estate: Once an estate is undergoing the probate process, control over the assets lies with the judge, as he or she will dictate the distribution of the estate.

FAQs

Q: What Happens if You Don’t File Probate in California?

A: If there is a failure to file for probate, the executor may face civil penalties, financial repercussions, and even criminal charges. The purpose of probate is to legally acknowledge a person’s death, which involves informing creditors that the individual has passed. Additionally, the inventory of the estate is prepared and transferred to beneficiaries.

Q: How Do I Avoid Probate in California?

A: Creating a living trust is a great way to avoid probate. With a living trust, you can place all of your assets, including real estate property, bank accounts, life insurance, and other personal property, into it. With a living trust, your property will be given to your beneficiary upon your death, avoiding the probate process.

Q: Do I Need Probate if There Is a Will in California?

A: Most estates must undergo the probate process if the value is of a certain amount. In the case where a will has been executed, the probate process is usually unnecessary. However, if the individual owns real estate property and has an established will, the estate is subject to the probate process.

Q: What Is Exempt from Probate in California?

A: Particular assets, such as life insurance, retirement accounts, and bank accounts that have beneficiaries, are exempt from the probate process. Property that has been placed in a living trust is also exempt. If there are jointly owned properties by a couple, the surviving spouse gains sole ownership after the death, avoiding probate. Social security benefits and benefits received by surviving relatives of a deceased veteran typically avoid probate as well.

Consult with a Probate Lawyer in California

Dealing with a loved one’s estate on your own is emotionally draining. The probate process can be confusing, drawn out, and expensive. When it comes to protecting your family and your legacy, you need the help of a probate lawyer. Contact Paul V. L. Campo Attorney at Law, for assistance in walking you through estate planning and the probate process.