From the desk of San Diego Probate Attorney, Kristina Hess
With contribution by Klint LeBlang
Overview on Probate
Probate can be a long and lengthy process costing your family thousands of dollars. Currently, San Diego has only two probate judges who handle all the probate court matters. This can cause probate to take up to a year even for a simple estate (and could be much longer where filing a federal estate tax return, or if there are contested issues). The good news is that probate is a voluntary process and can be avoided with the proper estate plan and San Diego Estate Planning Attorney’s guidance.
Probate is the process of transferring legal title of property from the decedent’s estate to his or her beneficiaries under the court’s supervision. This is done by filling out court forms and appearing in court to:
1) Prove to the Court that the Will is valid (if the decedent had a will);
2) Appoint a legal representative with authority to act on behalf of the decedent;
3) Identify and inventory the decedent’s property, and have the property appraised;
4) Pay debts and taxes, and
5) Distribute the remaining property according to the terms of the Will or to the decedent’s heirs (based on intestacy laws if decedent had no will).
Probate is not usually necessary if the decedent did not have property to transfer. However, probate is still recommended if debts are owed by the decedent or if there is a need to set a deadline for creditors to file claims.
California does offer “simplified procedures” for transferring property for estates worth under a certain amount ($20,000 to $150,000 depending on the circumstances and type of property). This avoids the formal probate process. Furthermore, assets distributed outside the probate process are part of a person’s “non-probate estate.”
What Assets Do Not Need To Go Through Probate
Many types of assets will avoid the probate process:
1) Joint Tenancy or Community Property with Right of Survivorship (California is a Community Property State),
2) Life insurance – benefits are paid directly to a named beneficiary (as long as the beneficiaries are not minors),
3) Retirement benefits – IRAs, Keoghs and 401(k) accounts transfer automatically to named beneficiaries,
4) Bank accounts set up as pay-on-death accounts or “in trust for” accounts with a named beneficiary, and
5) Living trust – property held by trust passes to the beneficiaries without court supervision.
Costs Of Probate
State law sets probate costs. These costs include appraisal costs, court filing fees and certified copies, executor’s fees, costs for type of insurance policy known as a “surety bond” and legal and accounting fees. These expenses can add up to 4% to 7% of the total estate value, sometimes even more. For instance, if someone contests the Will, thousands of dollars can be spent on the litigation costs. In sum, Probate is very expensive and just to probate a home with a mortgage and fair market value of $500,000 can cost $25,000.
Length Of Probate
As stated previously, probate is a lengthy process even if the decedent has a simple estate. California law provides the personal representative, the individual in charge of administering the estate (generally in the terms of the Will), must complete probate within one year from the date of appointment (unless he or she files a federal estate tax, in which case he or she will have 18 months). Many different circumstances can extend this process, including a will contest, which can result in a probate taking a number of years to complete. Other circumstances include the size and complexity of the estate or if it is hard to find the beneficiaries.
In California, probate hearings are in the Probate Department of the Superior Court in the county where the decedent lived at the time of his or her death. Therefore, a San Diego resident would have probate at the Probate Department located in Downtown Superior Court in San Diego. However, a probate petition will have to be filed in another state if the decedent owns real property located in that state.
Because probate is a voluntary process, it can be avoided entirely by proper estate planning. This is generally done with the help of an experienced estate planner who can help you prepare a living trust or other non-probate instrument to fit your needs.
If you are currently in probate or have questions regarding probate, please contact our office today.
Please note that this blog is not intended to provide legal advice and is for general informational purposes only.
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