The Probate Process
Probate and Wills
Probate is the legal process of distributing a person’s estate to their heirs or beneficiaries. Probating a will or estate can be a difficult procedure to navigate because a slew of legal requirements are necessary each step of the way. I have over 30 years of experience probating wills and estates and guiding people through the process to make it more manageable during a challenging time for the family. The steps in the probate process include court hearings, a formidable array of forms, and some daunting terminology.
I help make this process more manageable by breaking out each step, translating the terminology, and working closely with my clients so the probate process becomes clear and more efficient. Although many do not think of probating a will or estate as a clear, manageable, or efficient process, it is designed with these steps to protect the family. My job is to make sure that those protections do not become unduly burdensome to my clients.
The First Step
The first step in the process is information gathering. Did the individual who passed away have a will, trust or other testamentary document? What assets are there and how are the assets held? Sometimes these questions can be difficult to answer, but it is important to answer them because they will dictate what legal tools should be used. A formal probate proceeding is not always necessary but each asset must be examined individually to determine if probate is necessary and what alternatives, if any, there are to probate. We’ll sit down together to review all the information you have and make a decision on the best way to move forward. You can call us or contact us today to discuss your situation (510) 724-2020 and set up a time to go over all your documents.
The United States has a fragmented property system. There are many different ways that property can be owned and those different ways of owning property in turn dictate how the property can be transferred after someone passes away. Assets such as life insurance policies, IRAs, 401(k) plans, and pension plans typically do not go through the probate system because usually they have a beneficiary who survives the decedent. The key word is “usually” because on occasion the designated beneficiary passes away before the person who owns the life insurance policy or IRA or 401(k) plan. If that is the case, then a probate proceeding may be triggered to transfer the assets since the designee is no longer alive. Assets such as bank accounts and US Savings bonds may have payable on death clauses, and like the beneficiary designations, if the person identified on the payable on death clause survives the owner, then the account goes to that person automatically.
Will, Trust, Intestacy
As with our fragmented property system, there are several choices that can be made by an individual during their lifetime about passing on his or her property. An individual can do estate planning in the form of a will or a trust, or just do nothing. A will dictates who should receive property after someone passes away, but if the value of the estate is relatively small (in California this means less than a $150,000), then probate can be avoided by using a tool known as a small estate affidavit.
For estates with a value of more than $150,000, the only method of avoiding probate is a properly drafted trust but, and this is a big but, in addition to the trust, property must be transferred or retitled into the name of the trust. So, with trusts, there are really two major questions: first, “Is it properly drafted?” and, second, “Is the property retitled in the name of the trust?” Unhappily, an improperly drafted trust and/or the failure to properly retitle an asset into the trust may trigger a probate proceeding.
In the real world, doing nothing is also a choice. Each state has a set of laws that dictates what happens if there is no will or trust; these rules are called intestacy. Typically, the property of a person who dies intestate goes to that individual’s wife and children, and, if none, then to the nearest blood relative.
The probate process, as well as the alternatives to the process, is neither intuitive, nor common sense. The choices a family has after someone passes away are driven by the history of our probate system and the variety of choices that person has made during their lifetime about owning property and protecting their family. Navigating this system is never easy but I have the expertise and experience to make the best of what can be a difficult process.
Whether you need help navigating the probate process, or want to set up your estate planning documents so that your family members can avoid probate, the Law Office of David R. Baker can help. David has 30 years of experience working in probate and estate planning in the following California Bay Area locations: San Francisco, Berkeley, Albany, Pinole, Crockett, Martinez, El Sobrante, El Cerrito, Vallejo and Richmond. Call us or contact us today to discuss your situation (510) 724-2020