Estate planning and various other probate issues can be very confusing and stressful for families whose relative has just passed away. Many clients in this situation feel like they have to wade through mountains of paperwork alone and figure out the best way to handle probate cases. That is why at Jones Legal, we provide dedicated probate and estate planning assistance throughout California. We have years of experience in helping clients navigate the complexities of trusts, wills, estate planning, and more. We certainly do not want you to go through this grueling process alone.
What is Probate?
Probate is a legal issue that estates go through once a person dies. Probate litigation includes:
- Proving the validity of a deceased person’s will
- Locating and taking inventory of the deceased person’s property
- Appraising the deceased person’s property
- Paying estate taxes and debt
- Overseeing the distribution of the deceased person’s property in accordance with their will or state law if they don’t have a will
Families hire a probate attorney for the sake of smooth trust administration and estate planning, as probate law is often very confusing and stressful.
California Intestacy Laws
Intestate succession laws apply if a person dies without a will or trust. In California, if a person dies with:
- Children but no husband or wife, then the children inherit the estate.
- A spouse but no parents, siblings, children, then the spouse will inherit the estate.
- Parents but no siblings, spouse, or children, then the parents will inherit the estate.
- Siblings but no parents, spouse, or children, then the siblings will inherit the estate.
- A spouse and one grandchild or child, then the spouse will inherit all of the community property but only half of the separate property.
- Multiple children and a spouse, then the spouse will inherit all community property and a third of the separate property. Meanwhile, the children will inherit two-thirds of the separate property.
- Multiple grandchildren from a deceased child and a spouse, then the spouse will inherit a third of the community property and the grandchildren will inherit two-thirds of the separate property.
- Parents and a spouse, then the spouse will inherit all community property and half of the separate property.
- Siblings and a spouse, then the spouse will inherit all community property and half of the separate property. Meanwhile, the siblings will inherit the other half of the separate property.
Assets That Go Through Probate
When a person passes away without a trust, some of their assets need to go through probate courts, while others do not. Listed below are the types of assets that need to undergo probate:
- Property that was only owned by the person who died
- This could be a car or a real estate property, for example.
- Joint property that is owned as “tenants in common”
If there are assets that require probate court proceedings, the executor specified in the will is responsible for starting and concluding the probate litigation. The probate court will appoint an executor if there is no will or if the will does not specify one. In either case, the executor can hire a probate lawyer to represent them in court. They may also use the estate’s money to pay the probate lawyer fee.
Assets That Don’t Go Through Probate
Meanwhile, there are many assets left behind by a deceased person that do not need to go through probate courts. If the person who died was married, had joint ownership over many assets, or already did some probate administration, probate disputes may be unnecessary. Listed below are specific assets that do not need to undergo probate litigation:
- 401ks, IRAs, or any other retirement accounts that name beneficiaries
- Life insurance money, but not if the estate is listed as the beneficiary
- Specific property that’s included in a living trust
- Money that’s included in a payable-on-death (POD) bank account
- Savings bonds that are included on the POD form
- Stocks, bonds, ETFs, and other securities that are listed on a transfer-on-death form
- Jointly-owned savings bonds
- Real estate property that has a TOD deed
- Distributions from pension plans
- Property that’s jointly held with right of survivorship
- Property that’s owned by tenants by the entirety with a spouse
- Boats or cars that are listed on the TOD form
- Cars that are passed down to family in accordance with state law
- Various household assets that are passed down to family in accordance with state law
What is Summary Probate?
A summary probate proceeding is basically a simpler probate process that is reserved for small estates. This simplified probate proceeding can save everyone money, time, effort, and grief.
Qualifications for a Small Estate
Every state has different qualifications for small estates. According to California courts, a small estate is considered one that’s worth less than $166,250, as of January 2020.
How to Avoid Probate in California
You can avoid probate in California by placing all valuable assets and securities into a trust. You can then name beneficiaries who will ultimately receive your assets upon your passing. You can also avoid probate if you list specific assets on a payable on death form. Additionally, property owned in joint tenancy will generally go to the surviving owner, therefore eliminating the need for probate matters.