What Is Probate?
Most homeowners understand that their heirs will not have to deal with the California probate process if their homes are placed in a living trust. One of the main reasons why most homeowners create a living trust is to avoid probate because the probate process is costly and time consuming. When a living trust is created, normally the probate attorney will draft a trust transfer grant deed to transfer the house into the living trust (making the living trust the owner of the house). When the creator of the living trust dies then the children will have the option of selling the house without having to go through the probate process. However if there is not a trust then the house will go into probate.
What is Probate?
California probate is nothing more than a title clearing process. The state judge appoints the personal representative, the personal representative collects all the assets, pays all the valid debts from the assets collected and distributes the money to the rightfully heirs. This whole process is supervised by a state judge and usually takes about one year to complete.
If there is a will naming an individual to be the personal representative then the court will appoint that individual to be the executor of the estate. If there is no will, then the surviving spouse, children, parents, relatives or creditors can petition the court to appointment themselves to be the administrator of the estate. The executor or administrator’s duties are the same. If there is a dispute as to who should be appointed as the personal representative, then the California Probate Code establishes a rule of priority as to who should be appointed.
Which Assets Are Subject To Probate?
Not all assets need to go through the probate process in order to pass to the heirs. For example, 401K accounts, IRAs, life insurance and other types of retirement accounts usually do not need to be probated because these types of assets have designated beneficiaries. Likewise, real estate properties that are held as joint tenancy, community property with right of survivorship or held in a living trust do not need to be probated. Once the potential assets that need to be probated are identified and the gross value exceeds $166,250 then a probate is mandatory. If a house is held in the deceased parent’s name then most likely a probate will be needed. If the decedent does not own a home but has cash in the bank exceeding $166,250 then a probate is needed. All assets passing to a surviving spouse do not need to be probated but rather a spousal petition can be filed. A spousal petition process takes about two months, whereas, the probate petition process takes about one year.
Closing The Estate
The probate administration begins when the judge appoints the personal representative (PR), which is signified by the court issuing a form called “Letters”. The PR can now sell the applicable assets (such as the house) to pay off all the debts and taxes. After the estate assets have been appraised and liquidated, the estate can petition the court’s permission to distribute the money to the heirs, pay the personal representative’s fee and the probate attorney’s fee, and file the appropriate paperwork to release the personal representative from any further duties and liabilities.