It is, however, more time-consuming and more expensive than planning ahead.
Probate will usually begin when someone petitions the court for designation as an estate’s administrator or executor.
If a valid will exists, its named executor will file it in probate court along with a petition for probate and all other relevant documents. He or she will have the will’s witnesses attest to its validity by signing a sworn statement. He or she will also issue a formal notice of the probate process to every individual that has an interest or stands to inherit.
In the absence of a will, a family member will petition the court for the same authority and take over executive activities.
The Duties of the Probate’s Executor
Once the probate court has granted authority over the estate’s assets to the designated family member or the will’s executor, the authorized individual must:
- Secure a taxpayer ID number in the name of the estate.
- Open a bank account from which to pay all debts.
- Have the probate property appraised.
- Compile an inventory of the assets, stating the value of each.
- File the itemized accounting with the court.
California law will normally allow the named executor to handle these matters with without specific probate court approvals. He or she can therefore pay all relevant taxes, sell certain assets and handle creditor claims apart from any legal supervision. When it comes to such acts as selling real estate, however, court approval is required.
Although the process may seem involved and somewhat intimidating, most people have little difficulty handling it successfully. When things get tough, however, an attorney familiar with the probate process can always lend assistance.
Why the Probate Procedure Takes so Long
During any probate process, the applicable imperative often comes down to “hurry up and wait.” While each individual phase may go quickly on its own, the lengthy intervals between filings and hearings can drag the procedure out interminably.
After the initial filing, the first probate hearing will likely not occur for two to three months. This is followed by a 12-week period during which creditors have the chance to file their claims. It is then time to file a second petition requesting permission to distribute the property and close the estate. After this, another six to 12 weeks will normally pass before that distribution and closing finally takes place.
The probate courts in southern California are backlogged and all hearings are set months in advance. It is not uncommon to show up for your hearing only to be told that there is a defect in your pleadings. When you have a defect in your probate pleadings you will need schedule a new hearing so you have time to fix the defects. This can push the whole procees out another several months.
When Probate Problems Arise
While a smoothly processed probate can take from seven to 10 months to completion, any number of glitches can drag that period out into years. Problems can surely arise if:
- A creditor files a legal claim to the assets.
- The designated executor neglects to notify one or more interested parties.
- A petition’s information is missing or faulty.
- The notice of publication is imprecise or prematurely released.
- At least one beneficiary chooses to contest the estate’s distribution.
- The probate court has a significant backlog
- There are defects in the pleadings
Actions taken by dissatisfied beneficiaries can put the brakes on the probate process for an indefinite length of time, particularly when someone institutes a lawsuit in the hopes of securing satisfaction. Although the probate process in California will normally consist of paperwork only, many prefer to turn the entire problem over to a probate attorney.
Avoiding Probate Entirely
Many people fail to realize that probate is not always necessary. It is possible to avoid it entirely if the assets in question exist:
- In joint tenancy with another person.
- As survivorship community property between the deceased and a spouse.
- In a revocable living trust.
- In payable-on-death accounts.
- As gifts transferred by the deceased prior to his or her death.
- In amounts adding up to $150,000 or less.
It is also to possible to transfer assets to a person’s surviving partner or spouse through a spousal property petition. While this does not allow you to avoid probate entirely, it does streamline the procedure, and you can transfer as much as you wish in this way with no upper limit on the value.
In the end, intelligent estate planning will make all the difference, and the attorneys at Odgers Law Group can help. Why take chances with probate court? Call Odgers to see how a few simple steps taken today can protect your loved ones from the threat of dealing with probate tomorrow.