LA Probate Law: Must an Estate be Probated?
Probate is a legal proceeding that takes place following one’s death, during which the administrations of certain portions of the estate are subject to court supervision, explains LA Probate Law. The primary probate proceeding takes place in the county where the deceased person resided; and “ancillary” probates will occur in every other state where that person owned real property in his or own name alone or as a tenant in common. The probate period continues until the legal obligations of the estate have been met and the court orders the final distribution of the estate. The purpose of probate is to provide a legal forum for: verifying the validity of the will (or lack thereof), admitting the will to probate, and presiding over any will contests; appointing an executor or administrator for the estate – this person must be bonded, unless the will waives the bonding requirement; identifying, inventorying and appraising the deceased person’s property; notifying creditors of the administration of the estate and giving them a limited time period to present any claims they may have against the estate; supervising payment of the decedent’s debts and taxes and clearing title to assets; and approving the sale of assets (if necessary) and overseeing the final distribution to the lawful beneficiaries.
Not all Assets need to Probate
Many assets do not go through probate, including assets held in joint tenancy, assets that have named beneficiaries, and assets held in living trusts. Small estates may avoid probate, and estates passing entirely to a surviving spouse may avoid probate. Assets that are held in joint tenancy titling – “Joint Tenants,” “Joint Tenants With Right of Survivorship,” “JT TEN”, or “JTWROS” – will not go through probate, so long as there is one joint tenant still living. Title passes entirely to the surviving joint tenant, although some paperwork may be necessary to document the change. Note, however, that probate most likely will not be avoided at the death of the last surviving joint tenant if the asset passes to that person’s beneficiaries through his or her will. In California, spouses (and registered domestic partners) may hold title to assets as “Community Property With Right of Survivorship”, which operates similarly to joint tenancy in avoiding probate at the first person’s death. Assets payable to a surviving named beneficiary will avoid probate says LA Probate Law. In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse.
Avoiding Probate in California
Avoiding probate is easy if you plan ahead. The benefits are lower costs for your estate administration and less frustration for your family. See the Probate Page for reasons to avoid probate. Among the methods of avoiding probate are the following: living trusts: assets owned through a living trust do not need to be probated. Joint tenancy is if an asset is owned by two or more people as joint tenants, it will usually not be probated explains LA Probate Law. These assets can be identified by the words “joint tenants,” or “in joint tenancy,” “JT TEN,” or similar wording. When a joint tenant dies, the other joint tenant takes 100 percent ownership of the asset. This occurs regardless of the provisions of the will or trust of the deceased joint tenant. In other words if a house is held in joint tenancy by persons A and B, and A dies, it doesn’t matter what A’s will said about the house because the joint tenancy has a higher priority and the house will be owned 100 percent by B. If this is what A and B intended, then joint tenancy might be beneficial to them. Otherwise, they should use some other form of ownership, such as tenancy in common.
Advantages to Probate
A formal probate will help to ensure that the estate is properly settled and everything that ought to be done gets done. Informal estate settlement often leaves important matters unfinished, and problems can arise years later. Automatic creditor claims cutoff. A probate requires notice be sent to all known creditors. If those creditors don’t file a formal claim against the estate, their claims will be forever barred after the passage of the creditor claims period. This can be particularly important for estates where contingent liabilities may exist (e.g., pending litigation or potential future malpractice claims). Once the creditor claims period has passed, the law protects the estate from future liability for those past claims say LA Probate Law. This doesn’t mean that probate will free the family of moral obligations to pay the decedent’s debts, but the executor must exercise caution in paying bills that are not legally enforceable. The heirs could challenge the executor’s right to use their inheritance to pay creditors if claims are not filed properly and in a timely manner. The actions of the executor or administrator are subject to court supervision, and that person must account to the court for his/her actions. Non-probate estates do not have this safeguard, although court supervision can be requested if desired. In some cases, court supervision is the best way to protect the interests of all parties concerned, especially if there are disgruntled heirs who seek to challenge the will. A probate proceeding will result in a court order stating who is to receive what from the estate and authorizing the executor/administrator to transfer the assets to the proper persons.
LA Probate Law: Must an Estate be Probated?
Latest posts by Scott Schomer, Estate Planning Attorney (see all)
- Understand the Limitations of Social Security and Medi-Cal - May 5, 2019
- Basic Estate Plan Components - May 4, 2019
- Estate Planning and Remarriage - May 3, 2019