Tuesday, September 5, 2017

What is a Probate and Where Do I Start?

Filing and managing a probate case can be a long and arduous task.  Or, it can be simple.  The difference lies in the circumstances. 

Immediately after the death, a thorough search should be made to locate any “end of life” documents, as well as insurance policies, annuities, outstanding bills, deeds, and other associated documents. 

A search of records might be lacking and a deceased might pass away without a will, or “intestate.”  When this occurs, the court determines who will receive an inheritance by the laws of consanguinity (or succession).  This means that estate will be divided among the next of kin in accordance with the law.

In order to probate an estate, the personal representative (or executor) will have to select the proper form of probate. 

For instance, the personal representative might be able to use a simplified version of probate, or no probate at all.   

Sometimes a deceased’s real property passes directly to the beneficiaries without a court proceeding because of how the property is owned.  If real property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to prove his or her ownership of the property.

Sometimes, assets (primarily financial) pass to beneficiaries because the deceased expressed a desire to leave those assets to a named beneficiary (commonly known as “pay on death beneficiary”). Examples of this are life insurance that pays benefits to someone else other than the deceased’s estate, retirement benefits, death benefits, and trusts.

If the total value of the estate is less than $150,000, If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.

First, figure out if the value of the property (the estate) is worth $150,000 or less. To value the estate you should include:

All real and personal property.
All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

You do not have to include:

Cars, boats or mobile homes.
Real property outside of California.
Property held in trust, including a living trust.
Real or personal property that the person who died owned with someone else (joint tenancy).
Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.
Unpaid salary or other compensation up to $5,000 owed to the person who died.
The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)

Bank accounts that are owned by multiple persons, including the person who died.
If the total value of these assets is $150,000 or less and 40 days have passed since the death, you can transfer personal property by writing a declaration of facts.
If the deceased left $150,000 or less in real property, including some personal property, you may be able to use a simplified probate action instead of the formal probate which is briefly described below.

If there is no will and you are the surviving spouse or domestic partner you may also be qualified to use a simpler probate action by filing a Spousal or Domestic Partner Property Petition to obtain an order from the judge that sets forth what your share of the jointly owned or community property is and what part of the deceased’s separate and community property share goes to the surviving spouse or domestic partner.  If the surviving spouse/partner is legally entitled to all of the property, this may be the type of probate action the spouse/partner may use.

A formal probate is more complicated and requires that deadlines be met and that certain tasks be accomplished to the satisfaction of the court.

After a probate case is filed a hearing date is scheduled.  At the hearing, the judge will determine whether an Order for Probate and Letters should issue.  

Notice of the hearing must be provided to beneficiaries and surviving family members even if there is a will and they are not named in it.

The personal representative must also arrange for notice to be published in a newspaper of general circulation prior to the hearing.  Publication must be completed by the time of hearing. 

Creditors must be formally noticed and provided an opportunity to make claims against the estate. 

The personal representative then handles all the business of the estate, including selling and dividing the assets of the estate between beneficiaries or family members depending on whether there is a will or not, and what the court orders say.

The personal representative reports to the court on how the estate was handled This report is a final plan and an accounting so the judge can be satisfied that everything has been properly taken care of.

Whichever type of probate is needed, The Legal Doc can help you line up tasks and complete court filings in a timely and appropriate fashion.  Our rates are affordable and we provide you with step-by-step instructions so you are knowledgeable as to the processes.

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