Do Estates Have to Go Through Probate?
If you’re responsible for the estate of a deceased loved one, you are about to spend a lot of time learning about probate. In California, when someone dies, their assets are often required to go through the probate process to make sure they are passed on appropriately. The problem is that probate is complicated and requires understanding tax, inheritance, and financial law.
If you’re trying to navigate or avoid probate, you don’t have to do it alone. Working with an experienced probate attorney can save you time, effort, and emotional distress. At Rodriguez Lagorio, LLP, we can help. Schedule your consultation to learn more about our probate services, or keep reading to understand how the process works.
What Is Probate?
Probate is the process by which a decedent’s assets are distributed among their heirs or beneficiaries. While the California probate is generally lengthy and sometimes costly, not everyone’s estate will be subject to the process.
Probate is necessary in cases where the total value of the decedent’s assets exceeds a certain amount. If the deceased individual established a valid trust, had jointly owned property, titles with transfer on death designations, or other assets with named beneficiaries, such as life insurance policies or 401(k) accounts, their estate may avoid probate entirely.
The estates of individuals who have passed away without a will are subject to the laws of intestate succession. This means that the laws of the state of California determine how and when creditors are paid through the estate and how and when beneficiaries are given legal ownership of assets of the estate.
Steps Involved in the California Probate Process
The probate process in California can be broken down into five basic steps. However, each step can take significant time and effort, depending on the state of the will and estate plan.
- Validating the will: In California, certain formalities must be followed in witnessing a will. If those formalities are not followed, the will may still be probated. Suppose the decedent’s will is found to be invalid for reasons such as coercion, incapacity, or duress. In that case, the estate will be distributed according to the laws of intestate succession after the administration of the estate.
- Naming the executor: An executor of the estate, who will oversee the distribution of assets, will be named according to the terms of your will.
- Taking inventory of the estate: The executor will take an inventory of all the assets held by the deceased individual’s estate, and establish the fair market value for each, usually with the help of a probate referee assigned to the case by the court.
- Resolving claims against the estate: Any debts owed by the decedent or claims against the estate will be settled.
- Distribution of assets: At the end of the probate process, the decedent’s remaining assets are distributed amongst the beneficiaries.
Each of these steps can take a significant amount of time, and in contested or very high net-worth cases, the probate process can last years.
Frequently Asked Questions
To help you understand your options and avoid common pitfalls, we have answered some of the most frequent questions we receive from families in the Bay Area.
Why Does Having Only a Will Still Lead to the Probate Process in California?
Many families are surprised to learn that a will does not bypass the court. A will acts as a letter of instruction telling the probate judge who you want to inherit your assets and who should manage your estate. Because a will is a matter of public record, the court must step in to validate it, handle creditor claims, and formally transfer legal titles.
What Common Problems Can Delay the Probate Process in Fremont, California?
In Alameda County, a standard probate case typically takes anywhere from 9 to 18 months, but local complexities can easily drag it out for years. Common bottlenecks in the local area include disputes among heirs, managing or selling unoccupied real estate in the fast-moving Bay Area market, coordinating with out-of-state beneficiaries, and overcoming communication barriers within diverse families.
How Can an Estate Avoid Formal Probate if the Total Asset Value Is Modest?
Formal probate can be expensive and emotionally taxing, but it isn't always mandatory for smaller estates. Under California law, if the total value of the deceased person's probate assets falls below a specific statutory threshold, the family can often use a simplified, expedited affidavit process rather than a full court proceeding.
