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Probate

What is a Probate?

Probate is the legal process of administering an estate after someone dies. Probates are legal proceedings that occur in a court of law. It makes sure the decedents' property and possessions are given to the correct people, and any outstanding debts owed are paid in full. If someone dies with a will in place, then the court process verifies the will and then makes sure that the decedents' wishes are carried out. However, if there is no will or trust then the court will need to appoint someone to make sure the decedents' assets get to the proper person.

When Is Probate Necessary?

In most cases where one dies with a trust in place, a probate will not be necessary. However, if the property was not properly transferred into the trust or there is a contest of aspects of the trust then a probate may be necessary.

In circumstances, when one dies with no trust in place, but they have a will or no will then probate is always necessary.  Probate is the court's way of supervising the distribution of the decedents' assets and titles to those named as beneficiaries in the will or the heirs where there is no will.

What does not have to go through probate?

With a little preplanning, anyone can make sure the following items can avoid the probate process:

  • Liquid Assets of $166,250 or less that are not real property in California – In the case where the decedent dies with just liquid assets of $166,250 or less that are not real property assets in California then a California Small Estate Affidavit may be done pursuant to California Probate Code Section 13100.
  • Items Placed in a Living Trust– All items left in a living trust are owned by the trust and not the person who has died.  These items do not need to be handled through probate court.
  • Beneficiary-Named Items Anything that has a beneficiary already named in the document does not have to go through probate. For example, life insurance can have beneficiaries clearly stated on the policy.
  • Property Held Jointly with Survivor’s Rights – So if someone else’s name is on the deed, they own the property alone so there will be no need for the probate court to decide anything.
  • Payable on Death And Transferrable on Death Assets – Assets such as vehicles, real estate (not in all states), bank accounts, stocks, and even retirement accounts helps these items bypass probate and go straight to the beneficiary that is documented to have a pay on death or transfer on death beneficiary do not need to be probated.

All other items that are not listed above will have to go through probate

How Long Does Probate Take?

If there is a will and no one tries to contest it, the average probate process takes six months to a year. However, each case is unique, so the duration of the process differs from case to case. In the case when there is no will then the process can be much longer.

What’s Included in Probate Costs?

How much probate costs really depends on the estate size, the state you live in, and how much legal work is needed during the probate process. The estate pays the cost pursuant to the Probate Code. Here are a few items that cost:

  • Administrator/Executor Compensation 
  • Bond
  • Court Filing Fees 
  • Attorney Fees 
  • Publication Fees