There are many misconceptions regarding probate that cause clients to initiate estate planning with the wrong goals in mind. The focus of your estate plan should be preserving your estate for your family in order to protect their future. Probate processes in each state may be different, so you need to understand the process where you live. This article will attempt to dispel some of the most common myths about probate lawyers are faced with.
“The process of probate can take years to complete.”
A very common question from clients is whether their estate will be “tied up in probate.” Probate certainly takes time to complete, as it requires several steps before debts can be paid and the remaining property can be properly distributed. But a basic probate proceeding can usually be closed in 6 months to a year.
“Probate always costs so much money.”
While there are certain expenses that you can except as part of the probate process, every estate will not be prohibitively expensive. Probate typically includes attorney’s fees, court filing fees, and other basic costs. The reality is, many of the methods typically used to avoid probate will cost you money, as well. The issue is whether it would be better to spend that money now or let it be taken from the estate after your death. In some cases, the expense of trying to avoid probate years from now is a greater burden that the cost of letting your heirs cover the cost out of their inheritance later.
“Appointing an executor can take several months.”
Appointing an executor does not have to take a long time, most often only a week or so. When there are disputes about who the executor should be, a disagreement between family members, then the process can take significantly longer. So, the length of time needed to get an executor in place depends on the situation. Disagreements are not that common, so you may have nothing to worry about. A probate lawyer can help to avoid delays in estate administration.
“If I don’t have a will the state will take my property.”
Some clients have the mistaken impression that if you do not have a will or trust in place when you die, the state will end up with all of your property. This is not at all true. In the case of a decedent without a will, the laws are designed to give your property to your relatives, even the most remote ones, if necessary. In the rare situation where there are no absolutely no surviving relatives, then the estate “escheats” to the county where you were residing at the time of your death. This rarely happens, though. By having a will or trust, you can avoid this situation and leave your assets to those you care about most.
“Estate taxes will take half of everything you own.”
Another common misconception is that estate taxes or “death taxes” will cost you half of your estate. This is wrong. First, the vast majority of estates will not be changed any estate tax, as there is an exemption amount of $10 million (in 2018). That means unless your estate exceeds that amount your estate will not be charged any estate taxes. If you do have a large enough estate, then you will be charged less than 50% in taxes, more like 40% currently. Something else you should remember is that estate tax liability is not affected by whether or not you have a will.
Probate lawyers explain the basic steps
The first step involves initiating the probate process 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 has been filed, the notice of hearing will be published at least three times in the local newspaper and mailed to everyone named in the will. The personal representative is also required to take possession of the assets in the probate estate and create an inventory of that property.
After notice of the death has provided creditors with legitimate debts are required to submit a claim. If those claims are valid, they will be paid from the estate before other distributions can be made. The personal representative is also responsible for ensuring that all estate taxes are paid before any distributions are made to heirs and beneficiaries. The final step in the probate process is closing the estate which involves providing an accounting of all transactions to the court.
Join us for a free seminar today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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