Why Does My Fathers Estate Have to Go Through Probate?

| Jun 22, 2021 | Probate |

Why Does My Fathers Estate Have to Go Through Probate

Losing a parent can be one of the most difficult experiences in a person’s life. In the midst of grieving and making final arrangements, you may also be tasked with determining how to manage your parent’s estate. If you are unfamiliar with the probate process, you may be wondering: Why does my father’s estate have to go through probate?

What is Probate?

Probate is a legal process that involves administering a person’s estate after they pass away. If a person dies with a will, probate will involve the court appointing a personal representative, reviewing the will, confirming its validity, and seeing to it that the decedent’s debts are paid and their instructions are followed. If the person died without a will, the probate court will appoint an executor to oversee the stages of probate, and the decedent’s assets will be distributed to their relatives according to California law.

What Happens During Probate?

If your parent had a will, the will and a petition for probate will be filed with the probate court. After the will and petition are filed, the court will appoint a personal representative to administer the estate. At this time, the will is going to be submitted to the court. During this process, the probate court will be able to consider contests to the will’s validity, if any. Once the court finds the will to be valid, the administration can proceed.  If your parent died without a will or intestate, the court will appoint an executor to administer the estate, and the estate will pass to their survivors according to California law.

When Does a California Estate Have to Go Through Probate?

An estate must go through some form of California probate if the decedent died without a will. The decedent’s estate will also go through probate if they had a will. However, under California law, if the gross value of the “probate estate” (real and personal property owned by the decedent) is less than $166,250, their successors may be able to file an affidavit to collect from the estate rather than going through the entire probate process. Otherwise, the estate may have to go through the full process so that assets can be transferred to the decedent’s survivors.

Are There Any Assets That Don’t Have to Go Through Probate?

When a decedent owned real property in a joint tenancy, their property interest will revert to the surviving joint tenant without having to go through probate. Additionally, real property the individual owned with their spouse that is titled with right of survivorship language will revert to the surviving spouse outside of probate. Depending on the property’s title, the surviving spouse may need to file a Spousal Property Petition with the court to transfer ownership of the asset. Assets with a named beneficiary or a payable-on-death feature such as a bank account, life insurance policy, or investment portfolio, do not have to go through probate and may be paid directly to the named party or parties.  Further, generally, assets and funds that have been placed in a valid trust are not considered the property of the decedent and, therefore, will not be considered part of the probate estate. Instead, trust assets will be distributed according to the device’s terms.

Whether your father or another loved one’s estate must go through probate will depend on various factors. Additionally, some of your loved one’s assets may be eligible for transfer through a streamlined or simplified process rather than having to go through full probate. The best way to determine the options for your parent’s estate is by working with an experienced California probate attorney. Your probate lawyer will know how the probate process works and will be able to provide you with the insight and advice you need to determine your next steps.

At the Law Offices of Alice A. Salvo, we are experienced California probate attorneys who can help you evaluate your situation and determine the best solutions for your circumstances. Contact us today to schedule your free consultation.

 

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