1. What is Probate?
Probate is a court-supervised process for transferring ownership of a person’s assets after death. This process confirms the person’s will and distributes property in accordance with the will. If the decedent died without leaving a will or other legal paradigm for transferring assets, the estate may still go through probate.
The purpose of probate is to safeguard the rights of heirs, beneficiaries, and those with a stake in an estate. Probate also establishes the estate’s tax and creditor obligations.
2. What if a Loved One Dies Without a Will or Trust?
If a person dies intestate (without a will or a trust), the decedent’s property is distributed to the decedent’s closest relatives (heirs) in the order that the state deems appropriate. If the decedent had a home or other real property that was not held in joint tenancy and the heir was not the surviving spouse, the decedent’s estate must be probated before the property may be passed to the heirs.
3. What is The Purpose of a Personal Representative?
The executor/trustee is in charge of collecting the estate’s assets and creating an inventory of the property. If a deceased individual has debts owed, the executor/trustee is in charge of collecting money from the estate, settling debts/expenses, and distributing the remaining assets in accordance with the will (or intestate, according to California statutes). Before distributing residual assets and terminating the estate, the executor/trustee may need to liquidate or sell assets to settle debts.
4. Who is the Personal Representative Exactly?
Subject to certain constraints, the personal representative might be an individual, a bank, or a trust corporation. Personal representatives can be either California residents or spouses, siblings, parents, children, or certain other close relatives. A personal representative can be a trust business formed under California law or a financial institution that functions in California.
5. What Happens During Probate?
While no two probate processes are identical, the following are some common obligations of an executor/representative:
- Estate possessions: Identifying, finding, safeguarding, and evaluating your loved one’s estate assets should begin as soon as possible following their death. You must next ensure that the residual assets are legally transferred to the beneficiaries and/or legal heirs.
- Creditors: You must tell creditors that the probate procedure has begun, and you must evaluate any creditor claims.
- Litigation: If someone disputes the Will, you must defend it through the legal system.
- Taxes: Federal gift and estate taxes, as well as an estate tax return, must be computed and paid.
6. Is Probate Necessary?
This is determined by your personal properties and assets. We invite you to contact the Law Offices of Alice A. Salvo to discuss your alternatives. Here are some probate-avoidance tools and strategies:
- Developing trust: A trust’s assets do not need to go through probate at all.
- Account designations: By designating bank accounts as “payable on death” or “transfer on death,” a chosen beneficiary has no legal ownership stake in the account or asset while the owner is still alive.
- Choosing the proper sort of joint ownership: If your property is listed as joint owners “with rights of survivorship,” it means that it will be passed to the remaining co-owners without going through the probate process.
- Using life insurance: Life insurance proceeds are also exempt from the probate process.
7. Is the Help of a Lawyer Necessary?
The Law Offices of Alice A. Salvo highly advises the executor to retain the services of a law firm to assist in estate administration. An experienced probate and estate planning attorney should draft the documentation needed to open and close the estate, as well as counsel you through this legally complex process. We take satisfaction in being able to help with every aspect of estate administration at the Law Offices of Alice A. Salvo. Call us or fill out the client form here!