You will invariably come across the word “probate” if you are looking for information about estate planning. Everyone should have a basic understanding of this process, and we will provide an overview in this post.
If an executor that is named in a will could provide inheritances without any court supervision, creditors may not be given an opportunity seek payment before the assets are distributed. There would be no oversight, and there would be no process for challenging the validity of the will.
Probate is a legal proceeding that takes place under the supervision of a court. When a will is used to transfer assets, the executor must admit the will to probate. No inheritances will be distributed until the estate has been closed by the court.
Creditors are notified about the passing of the decedent, and they are given time to seek payment. If anyone wants to challenge the will, they can make a case while the estate is being probated.
When everything is in order, the assets will be distributed to the beneficiaries in accordance with the wishes of the decedent.
This court also presides over guardianship and conservatorship matters. A conservator is a person that is empowered to handle the affairs of an incapacitated adult.
When someone dies without any estate planning documents, the probate court will appoint a personal representative and provide supervision while the estate is being administered.
In an intestacy case, the assets would eventually be distributed in accordance with the intestate succession laws of the state of California.
Asset Transfers Outside of Probate
All postmortem asset transfers are not automatically subject to the probate process. If you have a life insurance policy on your life, the beneficiary that is named will receive the proceeds after your death, and the probate court would not be involved.
You can establish a payable on death account at a bank or a brokerage. As the name would suggest, the beneficiary that you name when you create the account would inherit the assets in the account after your passing. Probate would not be a factor.
An individual retirement account is another type of payable on death account because the beneficiary would assume ownership of the account outside of probate.
In addition to financial institutions, you can name a beneficiary when you register your motor vehicle in California.
If you own property, you can change the ownership documents to add a joint tenant. This would be a co-owner of the property in question. Upon the death of one joint tenant, the surviving joint tenant would inherit the ownership interest that was owned by the decedent outside of probate.
The problem with joint tenancy as an intentional estate planning move is the fact that the person that you add to the title or deed would own a portion of the property immediately. Their interest in the property would be in play if they are sued, and it would be on the table during divorce proceedings.
People avoid probate for three primary reasons, and time consumption is one of them. The inheritors do not receive anything while the estate is being probated, and it will take nine months at minimum. More complicated cases can take considerably longer.
Probate expenses consume a portion of the estate, and it will typically be between three percent and seven percent according to a study. Loss of privacy is another drawback because the records are available to anyone that wants to access them.
If you use a living trust instead of a will as the centerpiece of your estate plan, you would be the trustee while you are alive. As a result, you would have total control of the assets, and you could revoke the trust if you choose to do so.
After your death, a successor trustee that you name in the document would distribute the assets to the beneficiaries, and the probate process would not be necessary.
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