| If you have recently had a loved one pass away, we understand it can be a difficult time. However, addressing legal matters during a period of grief is unfortunately sometimes a necessity, please know McFarlin & Geurts, LLP are experienced probate attorneys who stand by ready to help if you so desire. Obviously without knowing your specific circumstances, we can't offer legal advice over the internet, but can at least provide some general answers to questions you may have about probate. |
| WHAT IS PROBATE? |
| If you are asking yourself "what is probate?" the odds are you've already compromised the opportunity to avoid probate but we nonetheless address the question at hand. So what is probate? Probate is the process under California Law by which the court supervises an orderly transfer of a deceased person's assets to the beneficiaries listed in his or her will, if a will was prepared. |
| What is probate...who's in charge? Typically, an executor identified in your will (a trusted advisor or loved one) would start the process after your death by filing a petition in probate court seeking formal appointment by the court. Your executor would then manage your assets, pay your debts and, after receiving court approval, disburse the remainder of your estate to beneficiaries or heirs. If you were to die intestate (that is, without a will), a relative or other interested party could start the probate process. |
| What is probate...without a will? In such an instance of intestacy (it sounds like a digestive disorder but it's not), the probate court would appoint an "administrator" to oversee your assets and property (your estate). An administrator is also sometimes referred to as a "Personal Representative" and the terms are often used interchangeably in a probate court proceeding. |
| What is probate...with a surviving spouse or small estate? A simpler procedure is available for transferring property to a spouse or for administering estates in which the total assets of the estate amount to less than $100,000. The probate process has advantages and disadvantages. |
| The probate court is accustomed to, and adept at, resolving disputes regarding the distribution of assets relatively quickly through a process with defined rules under probate law. In addition, the probate court reviews the personal representative's (executor or administrator) management of each estate, which can help protect the beneficiaries' interests, even if they are unrepresented. If the executor or administrators are female, the feminine version of those terms is sometimes used: executrix or administratrix. These are fairly antiquated terms are rarely used anymore. |
| What is probate...continued. One disadvantage, however, is that probate is a public process which takes place in court and therefore in the public records. The value of a decedent's assets will become a public record when the estate is administrated through the probate process. Additionally, because lawyer's fees and executor's commissions are based on a statutory fee schedule, probate can cost more than the management and administration of a comparable estate under a living trust. |
| When asking, what is probate, time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust, which is something to consider if there is still time to avoid asking what is probate. Discuss such advantages and disadvantages with a qualified estate planning lawyer before making any decisions regarding your estate. Estate planning attorneys such as McFarlin & Geurts, LLP can answer your important...what is probate questions and address your probate concerns. |
| HOW LONG DOES PROBATE TAKE? |
| This is a difficult question to answer without knowing the particular circumstances at hand. How long does probate take generally can go a few different ways? The time it takes to probate an estate naturally depends on the value of the estate and how complex the estate is, including whether or not the deceased left his or her financial affairs in order. How long does probate take also depends on if the deceased left piles of unorganized papers in a paper bag full (as we have seen before), or if things were organized and files were kept neatly. How long does probate take also can be affected by the administrator's ability to quickly sort out the documents and organize information, like finding the will, gathering assets, filing tax returns, and paying debts. Other how long does probate take situations can cause delays such as a complicated tax situation, many diverse or hard-to-value assets to be sold, debt disputes, lawsuits against the estate, or difficulty finding the people who will inherit the estate under a Will or under state law (Beneficiaries). A lawsuit involving a challenge to a Will or dispute may cause painful delays. McFarlin & Geurts, LLP would be happy to answer questions such as how long does probate take for you. |
| How long does probate take also depends on the procedures your state requires. Every state has its own laws and processes on Probate, with specified procedures, forms, and documents that must be filed and deadlines that must be met. Many states have summary procedures for simple or small estates (under a certain dollar amount), and these summary procedures are usually much faster than the typical Probate procedures (and consequently less expensive). How long does probate take depends largely on the dollar value of the estate and the cooperation of parties in interest. |
| Considering all of these "how long does probate take" factors, probate can take anywhere from 3-6 months to several years. In California, as a convenient example, the average estate takes 7-9 months to get through Probate, if all goes as planned, but if there is a complication like a Will contest or some other lawsuit, all bets are off. Some estates have taken decades to resolve. |
| FAILURE TO PROBATE WILL |
| Obviously, it would be nice if probate were simply voluntary, however failure to probate will is generally not a good idea. If you are contemplating failure to probate will, consider California Probate Code Section 8200(b). |
| CALIFORNIA PROBATE CODE SECTION 8200(B) READS AS FOLLOWS: "A custodian of a will who fails to comply with the requirements of this section is liable for all damages sustained by any person injured by the failure". |
| BUT...WHAT IF THERE IS NO WILL? |
| You might think no will means failure to probate will is acceptable, unfortunately that is not the case. If a person dies without a Will known as dying "intestate" (again not a digestive disorder despite what you may think), the probate court appoints a personal representative (known as an "administrator"), in lieu of an "executor" as is the common probate manager so that there is no failure to probate will. |
| The major difference between dying testate (again with a will) and dying intestate (without a will) is that an intestate estate is distributed according to state law (known as "intestate succession" statute). A testate estate is distributed according to the specific instructions left by the decedent in his or her Will. Failure to probate a will is not really an option, without opening yourself up to liability. |
| FAILURE TO PROBATE WILL...BUT WHAT HAPPENS IF WE CANNOT FIND A WILL? |
| If a Will is lost and can't be found, the specific facts and circumstances of the situation, as well as state law, will determine what happens next. |
| FAILURE TO PROBATE WILL EXAMPLE : For instance, if the existing Will is missing (as distinguished from lost) because the decedent intentionally revoked it, an earlier Will or state laws on intestate succession would determine who gets the decedent's estate. |
| FAILURE TO PROBATE WILL EXAMPLE 2: If a Will is missing because it was stored in a bank vault, destroyed in a fire, or some other unintentional circumstance occurred, the probate court may accept a photocopy of the Will (or the probate lawyer's draft or computer file), if there is some evidence that the decedent properly signed the original. Many people simply entrust their will with their estate planning or will attorney for safekeeping. |
|
| HOW TO AVOID PROBATE |
|
| Because of the high costs and delays associated with the probate process, people often find themselves asking how to avoid probate. A number of mechanisms have been adopted as various means to keep property outside of the probate system. The probate process only applies to assets that are titled only in the decedent's name individually. The probate process does not cover assets held in joint names or assets that the decedent has contributed to a trust. For this reason, the primary ways to avoid probate are to contribute assets to a trust or to re-title assets so that they pass by operation of law and not under the terms of a will or the state laws of intestacy. Perhaps the most successful and widely used mechanism for how to avoid probate is the use of a living trust. A living trust permits you to easily transfer assets and property according to your wishes and avoids costly delays associated with the probate process, and the need for court involvement. |
| McFarlin & Geurts LLP attorneys are experienced in advising clients on how to avoid probate. |
|
| HOW TO PROBATE A WILL |
|
| HOW TO PROBATE A WILL STEP 1 |
| The first step on the road to probating a will is to simply locate the will itself. This could be an easy or a difficult task depending on the decedents record keeping system. The will could be in a kitchen drawer, safe deposit box, under the mattress or at the lawyer's office, in a home safe, or even at a friend's house. |
| HOW TO PROBATE A WILL STEP 2 |
| Determine whether the decedent owned real property. If you're not familiar with the term, real property the ground itself (land) and anything attached to it. Anything else the decedent owned is considered personal property (cars, boats, jewelry, etc.). |
| HOW TO PROBATE A WILL STEP 3 |
| Determine where the probate court is located. Some states have probate courts while others, like Virginia, do not. California does have Probate Courts, as a division of the Superior Court. If there is a probate court, go there. The appropriate Probate Court will generally be located in the county in which the decedent lived. |
| HOW TO PROBATE A WILL STEP 4 |
| Know your decedent's assets and personal financial affairs. If you are the executor or administrator, have the mail redirected to your house or check the mail often so you are alerted to mortgages, car payments, retirement updates, and other important documents which you may not even be aware of. You may also want to search through the decedent's important files to get an idea of their financial affairs to assist you in how to probate a will. |
| HOW TO PROBATE A WILL STEP 5 |
| Request the official appointment of an executor or administrator from the probate court if the decedent didn't specify one to his attorney. Different states call these people different names. Generally, the individual who has a fiduciary responsibility for the decedent's estate is the executor or administrator. |
| HOW TO PROBATE A WILL STEP 6 |
| Make an appointment with the Probate Court that will be overseeing the probate process. Bringing a list of assets (and approximate values), the original will, and the death certificate is a good starting point. |
| HOW TO PROBATE A WILL STEP 7 |
| Unless you have some background in these types of matters, or the estate is small and can be summarily administrated and you have an abundance of patience, seek legal advice from an estate planning attorney or the clerk at the courthouse for more information. The clerk can be a valuable resource, even though they are not permitted by law to give you "legal advice", the clerk of the court can often set you off in the right direction (law library, legal aid, etc.). |
|
Of course if you find yourself asking "How to probate a will" it may be time to seek the advice of a qualified estate planning attorney. McFarlin & Geurts, LLP is available to assist you at very reasonable prices, and with a free consultation. Often times, hiring a lawyer, can actually save you money (and of course time) in the end rather than attempting a D-I-Y probate.
|
