There are many misconceptions regarding the California probate process that cause clients to start their estate planning with the wrong goals. The focus of your estate plan should be to preserve your estate for your family so you can protect their future. The California probate process may be different from that in other states, so you should understand the process in the state where you live.
Myth: The California probate process can take several years to complete
A popular question asked by many clients is whether their estate will be “tied up in probate,” for an inordinate amount of time. While probate takes some time to complete, it can usually be closed in 6 months to a year. Time is necessary because it requires several steps before debts can be paid and the property that remains can be properly distributed.
Myth: The California probate process is very expensive
Although there are some costs you can except to incur as part of the California probate process, each estate may not be prohibitively expensive. Probate usually includes attorney’s fees, court filing fees, and other basic costs. Nevertheless, most of the methods generally used to avoid probate cost a significant amount of money, as well. The decision to make is whether it would be better to spend that money now, or let it be charged to your estate after your death. Depending on the circumstances, the expense of trying to avoid probate years from now is a greater burden than the cost of letting your heirs pay the costs from their inheritance later on.
Myth: The appointment of an executor takes a long time
Appointing an executor doesn’t always have to take a long time to accomplish. Generally, it will only take a week or two. When there are disagreements about who the executor should be then the California probate process could take significantly longer. Hence, the length of time required to put an executor in place depends on the situation. Disagreements on the executor are not really that common, so you may have nothing to worry about.
Myth: If I don’t have a will, the state of California will end up with my property
Some people have the mistaken impression that if they do not have a will or trust in place when they die, the state of California will end up with their property instead of their heirs. This is not always the case. In the case of a decedent who has no will, the laws are designed to give their property to their relatives, even the most remote ones if necessary. On the rare occasion where there are no surviving relatives, then the estate “escheats” to the county where you were residing when you died. This doesn’t happen very often, though. You can avoid this situation by having a will or trust and leaving your assets to those you care about most.
Myth: Taxes will eat up half of my estate
Another common misconception is that estate taxes will consume half of your estate. This is not true. First of all, most estates will not be charged any estate tax because only estates that exceed $5.45 million actually incur estate taxes. If your estate is large enough, you will still be charged less than 50% in taxes. Something else you should remember is that estate tax liability is not at all affected by whether you have a will.
Becoming familiar with the basic steps of the California probate process
The first step in the process requires initiating probate by filing a petition with the California Superior Court in the county where the deceased resided at the time of his or her death. Once the petition is filed, a notice of hearing needs to be published at least three times in the local newspaper, as well as mailed to everyone actually named in the will. The personal representative is required to take possession of the assets in the probate estate and establish an inventory of property it contains.
Once notice of the death is provided, creditors with legitimate debts are required to submit a claim with the court. If those claims are determined to be valid, they will be paid from the estate before other distributions can be made. The personal representative is also responsible for making sure that all estate taxes are paid before any distributions are made to heirs and beneficiaries. The final step in the California probate process is to close the estate, which includes providing an accounting of all transactions to the court.
Join us for a free seminar! If you have questions regarding the probate process, or any other probate needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.