If you find yourself responsible for administering the estate of a recently deceased loved one, you are also facing the prospect of spending months, even years, entrenched in the probate process. The good news is that not all estates are required to go through formal probate. Moreover, some assets bypass the probate process altogether. Given the repercussions that can follow making a mistake, you should always consult with an experienced probate attorney before reaching the conclusion that an estate is not required to go through probate. The following guidelines, however, can be used to provide a preliminary answer to the question “When is probate not necessary in California?”
Probate Basics
Probate is the legal process that is often required following the death of an individual. Probate serves several functions, including:
- Ensuring that the decedent’s assets are identified, located, and secured.
- Authenticating a Last Will and Testament submitted for probate.
- Litigating challenges to the Will.
- Notifying creditors of the estate and providing the opportunity to file claims against the estate.
- Calculating and paying the final income taxes due by the decedent.
- Calculating and paying the income taxes on income earned by the estate during the estate administration.
- Calculating and paying any gift and estate taxes owed by the estate.
- Paying all creditor claims that are allowed by the executor or administrator
- Accounting to the court and beneficiaries for all income and assets received and expenses paid during the probate administration.
- Transferring assets to the intended beneficiaries and/or heirs of the estate.
The formal probate process is often a costly endeavor, both in terms of time and money. Because creditors of the estate must be given four months within which to file a claim, it generally takes a minimum of seven or eight months for even a relatively modest estate to get through the probate process. Furthermore, the expenses involved in probating an estate can significantly diminish the value of the estate that is ultimately passed down to loved ones.
When Is Probate Not Necessary in California?
Fortunately, the time and expense of formal probate are not always required to distribute estate assets of a decedent in California. As a general guideline, the following situations may allow for assets to be distributed without going through probate:
- The assets are non-probate assets. Not all assets are required to go through probate. Non-probate assets bypass probate and may be distributed immediately following the death of the owner. Examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly owned property (if titled with rights of survivorship)
- Accounts designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Many retirement accounts.
- If the estate consists of personal property only valued at less than $150,000. When an estate does not include real property, such as a house, the assets that make up the estate may be able to be distributed to the new owners by the probate attorney through the use of an affidavit. The value of the estate is determined as of the date of death, not the value today. In addition, all persons who are beneficiaries of the assets must sign the affidavit and you must wait 40 days after the decedent’s death before initiating the transfer of assets.
- If the estate consists of personal property and real property valued at $150,000 or less. If the estate includes both personal and real property, but is worth less than $150,000, your probate lawyer may be able to file a Petition to Determine Succession to Real Property. Your attorney will have to file the Petition with the court, obtain and file an Inventory and Appraisal, and provide notice of a hearing. In order to sign the petition, you are also required to have the legal right to inherit the property and must also wait 40 days after the decedent’s death before initiating this simplified probate procedure.
- If you are the spouse or domestic partner of the decedent. If you are the decedent’s spouse or domestic partner, your probate lawyer may be able to file a Spousal or Domestic Partner Property Petition in the Riverside County Probate Court or San Bernardino County Probate Court which will result in a court order that determines:
- What the spouse’s share of the community property is; and
- What part of the deceased spouse or partner’s share of community and separate property belongs to the surviving spouse.
Contact Riverside Probate Lawyers
If you have additional questions or concerns regarding the probate of an estate in California, contact the experienced Riverside estate planning and probate attorneys at Sandoval Legacy Group, A Professional Law Corporation by calling (951) 888-1460 to schedule an appointment. Our probate lawyers handle all types of probate matter in the probate courts of Riverside County and San Bernardino County.
Have a question? Ask Dennis.
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