Is Probate Absolutely Necessary In California?
Generally, if someone wants to avoid probate and makes plans during their lifetime, then their estate will not be subject to probate. However, if they have not made those plans, then there simply is no other option. No one else has the authority to transfer the property until they get a court order and the only way to get that court order is through the probate process.
Therefore, in the grand scheme of things, no, probate is not necessary. However, there are exceptionally rare cases when someone’s estate would have to be probated even if they had a proper plan in place.
Does All Of The Property Of A Deceased Person Have To Go Through Probate?
Most of the deceased person’s property has to go through probate. However, there are several instances where property and assets would avoid the process.
There is a hierarchy that starts with assets that are held in joint tenancy. If a deceased person held an asset in joint tenancy, whether it was a financial asset or real estate, then that asset does not go through probate. It simply goes to the joint tenant through a very simple process.
Secondly, if real estate is held as community property that generally does not have to go through probate. Additionally if it’s a financial asset that names a beneficiary, such as with the bank account or a brokerage account, those assets do not go through probate either.
The last category of assets that would not go through probate, are those held in trust. This means that title to the assets must name the trust as the owner, not the individual.
All other assets that do not fall into one of those first three categories would be subject to probate.
What Are The Options Available To Avoid Probate?
The best option for people to avoid probate is a combination of things. A beneficiary designation in the trust should usually be part of someone’s estate plan. There are some assets which simply cannot be put into trust however, such as retirement plan assets. They cannot be held in a trust but must be held individually. A person can name someone as a beneficiary on those assets and therefore avoid probate. On the remainder of their assets, they could transfer those to the trust and by doing so the estate would not be subject to probate.
Who Are The Main Players In A Probate?
The main player in a probate case is the judge. Additionally an important role is played by the judge’s assistant, a person known as the probate attorney. That individual reviews all the documents prior to the judge making a ruling and advises the judge on what they would expect the ruling to be. Those are the two most important players in a probate case.
The person who has to satisfy the judge and judge’s assistant, is the administrator or the executor. The administrator has to, in a timely manner, file all the appropriate documents with the correct supporting materials, giving all the required notices to any interested persons. Assisting the administrator is his or her attorney who knows the process and all of the procedures.
What Are The Typical Obstacles Faced In The Probate Process?
One of the biggest obstacles faced in the probate process is the sale of real estate. Certainly if the decedent had an interest in a closely held business, a family business or a sole proprietorship type of a business, those can be very challenging to deal with. Learning something new for the administrator and having to do something they are not familiar with, to handle the probate accounting and to try to keep financial records in such a way that the court will approve of them can sometimes be difficult.
What Generally Happens During The Probate Process?
Probate is essentially a three step process. The first step is petitioning the court to have a person named as the administrator of the estate. At this time, if there is a will, it is then submitted to the court and if valid it will be accepted and used at its direction for distribution.
The second step in the probate process is an administrative period during which the administrator will liquidate assets, real estates, stocks and securities and things of that nature. The administrator will consolidate any assets into cash so that all of the bills of the estate are paid to the extent that there are sufficient assets.
The third step of the probate is the accounting phase to the court and beneficiaries and a request for permission to make distribution. After that, if a request is granted by the court, the distribution is made and the probate is completed.
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