The probate court is responsible for a number of different matters that are related to the estate administration process. If you use a last will to state your final wishes, it would be admitted to probate by the executor that you name in the document. This court would supervise the administration of the estate.
It should be noted that intestacy matters are handled by the probate court as well. The term “intestacy” is used to describe the condition of passing away without any estate planning documents at all. Under these circumstances, the court would appoint a personal representative that would administer the estate.
Final debts would be paid by the personal representative and other details would be attended to as necessary. Ultimately, the court would apply the intestate succession laws of the state of California to determine who will inherit the remainder.
Yes, there are some drawbacks that go along with the probate process that you should be aware of before you make any final decisions. During probate, the executor is required to notify creditors about the death of the testator. They are given a certain amount of time to come forward seeking satisfaction.
Depending on the size and scope of the estate, inventorying the assets and arranging for appraisals, and in some cases, liquidation of property, can be quite time-consuming. At the end of the day, the simplest case may pass through probate in six to eight months, and a typical case can take up to a year. More complex situations can be drawn out for longer periods of time.
No inheritances can be distributed during probate, and this is one of the pitfalls. Considerable expenses accumulate during probate as well, and this is the other major negative. The executor is entitled to payment, and a probate lawyer will often be called in, so there are legal fees.
An accountant may be involved, and you can add in the court’s filing fee, appraisal and liquidation expenses and incidentals. In all, a significant percentage of the estate can be consumed during probate. This reduces the amount of the inheritances that will be received by the rightful heirs.
Probate does present a window of opportunity for anyone that wants to challenge the legitimacy of a will. This is a good thing in the biggest picture because in rare cases, there can be something amiss.
For example, a let’s say that a man in his 80s gets married to someone much younger. He dies six months after the wedding, and the surviving spouse presents a will that leaves her everything, and the children get nothing.
The children could present a challenge under these circumstances during probate. This being stated, completely scurrilous will contest are not completely uncommon, but the probate court must hear the contentions. This is a major hassle for the people named in the will, and it will slow down an already lengthy process.
There are some types of asset transfers that are not subject to the probate process. These would include life insurance proceeds and assets that are in payable on death accounts and individual retirement accounts.
To proactively implement a total probate avoidance strategy, you could use a revocable living trust as the centerpiece of your estate plan instead of a last will. The trustee that you name in the document would be empowered to distribute assets to the beneficiaries after you are gone. These distributions would not be subject to the probate process.
This is one of the major advantages that go along with the utilization of a revocable living trust, but there are several others. You can account for possible incapacity if you name a disability trustee in the document, and you can include spendthrift protections.
With regard to the matter of estate challenges, there is no direct built-in opportunity to issue them when a living trust is used. A disgruntled party could file a lawsuit, but this is costly and complicated.
Plus, if you suspect that one of the beneficiaries will be unhappy with the terms, you can include a no contest clause. This would trigger the disinheritance of anyone that is named in the will that files such a suit, so it serves as a powerful disincentive.
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