When you decide that you want to obtain information about something, you can easily pop a term into your favorite search engine in an effort to educate yourself.
Without question, a lot very valid information can be found online, but you do have to keep a watchful eye. The Internet is used by completely objective entities, but there is also a great deal of business conducted. When you search for a term, you are invariably going to run into articles that are intended to drive commerce.
This can enter the picture if you are looking for information about estate planning. We are not suggesting that people are publishing things that are patently untrue, but sometimes a singular perspective is presented with an underlying purpose in mind.
With this being stated, let’s look at the legal process of probate from a purely objective standpoint.
Here’s a hypothetical example that will provide some food for thought. We will assume that you have created a last will to state your wishes with regard to the distribution of property that will be in your direct personal possession when you pass away.
In this document, you have nominated an executor. This is the person who will take care of the business of the estate after you are gone. The executor that you nominate cannot act immediately after your passing without supervision. Your will would be admitted to probate, and the court would supervise the administration of the estate.
This can seem like an overreach by the powers that be as they intrude into a personal family matter, but it is not as simple as that. What if you borrowed $100,000 from a friend to help your son start a business, and you pass away before you are able to pay off the debt. Should your friend be paid before your son receives his inheritance from your estate?
The probate process is in place to provide supervision over situations like this one. During probate, the executor would be required to post a notification to creditors, and they would be given a certain amount time to come forward seeking satisfaction. Final taxes would also be paid during probate.
There is a proving of the will while the process is underway. In order for a will to be deemed valid in California, the will must be signed by the testator in the presence of two witnesses, and the witnesses must also sign the document. The court would make sure that it was properly executed, and the court could contact the witnesses during probate.
A will can be challenged during the probate process, and this can be a nuisance if it is a scurrilous challenge. At the same time, every challenge is not without merit. Suppose your uncle started dating a much younger woman when he was in his eighties. Your cousins, his children, have seen a will that he created before he met his new “girlfriend” that left them everything that he had.
It was clear to everyone in the family that your uncle was not in full control of his faculties toward the end of his life. After his passing, his girlfriend of six months presents a will that supposedly supersedes the will that was previously created. This will leaves the girlfriend everything.
During probate, the family would have an opportunity to come forward to contest the validity of the will that was presented by the girlfriend.
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As you can see, the probate process is not all bad, but it is time consuming, and it can be expensive. It is possible to use an asset transfer device that would facilitate probate avoidance, such as a revocable living trust.
If you would like to learn all the facts so that you can make fully informed decisions, attend one of her upcoming seminars. We will cover a lot of ground at the sessions, and they are being offered free of charge, so you have everything to gain and nothing to lose.
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