A properly prepared, funded and maintained estate plan will ensure you can avoid a formal probate administration in California. If an asset is held in trust, in a joint tenancy or as community property or has a named beneficiary on a beneficiary designation form, then these assets transfer outside of probate. However, there are downsides to solely relying on joint tenancy and community property to transfer assets and therefore, you should work with an attorney to determine your best planning options.
What Are Common Responsibilities Of An Executor Or An Administrator In California?
Common responsibilities of an executor or administrator of an estate include locating, protecting and appraising all assets, conservatively investing and managing all assets during the administration, keeping all assets in a separate estate account, maintaining accurate records of all actions taken, notifying all known creditors of the ongoing administration and communicating with beneficiaries or heirs throughout the administration.
How Do I Know If Probate Is Required In California?
It is advisable to speak with an experienced probate attorney to determine if probate will be required in California. There are several exceptions that may apply to avoid a formal probate and it is best to work with an attorney to see if any exception applies to your situation. If a question is brought to me, I will review the assets of the estate including their date of death value, whether they are located in or outside of California and how the decedent held title. I can then advise on whether there are any exceptions that may apply or whether a formal probate administration is required.
Is The Probate Administration Process In California Different If There Is No Will?
When there is no will, a decedent is considered to have died intestate. If a probate administration is required for an intestate estate, the administration process is largely the same as if the decedent had died with a will. However, a key difference is that when there is a will, the decedent’s estate is distributed to their chosen beneficiaries and managed by their chosen executor. But when a person dies intestate, the beneficiaries or heirs are determined by the probate code and the personal representative is chosen by the estate’s interested parties and the court. The heirs and personal representative of an intestate estate may or may not be the same persons the decedent would have chosen if they had established an estate plan.
Should I Always Hire A Probate Attorney In California?
I recommend hiring a California probate attorney. Legally speaking, a personal representative may handle the probate administration without an attorney. But an unrepresented personal representative may face frustrating delays, a longer administration process and impatient beneficiaries. The court rejects forms which are improper, incomplete and continues hearings for several weeks if not all necessary forms are on file. Many documents must be filed throughout the probate process and the lesser known forms are often missed if a person is not familiar with the process. Further, each county operates under its own local rules, which are not easily discoverable by a personal representative unfamiliar with the courts. Save yourself the time and frustration, and hire an experienced probate attorney.
What Is California’s Small Estate Alternative?
California’s Small Estate Alternative is the use of a small estate affidavit. The affidavit may be used to avoid a formal probate administration in certain situations. If the value of all probate assets is less than $166,250, then these assets may be transferred via small estate affidavit and without a formal probate. A probate asset is any asset that does not transfer via trust, joint tenancy, community property or beneficiary designation. Note that threshold applies to the total of all probate assets and not just the value of a single probate asset. In order to use a small estate affidavit, the person signing the affidavit must state 40 days have passed since the decedent died and no formal probate administration has or will be open. If a small estate affidavit can be used, then it can save the estate considerable time and money.
Is Probate Always Necessary In California?
Probate is not always necessary in California. The value of assets on decedent’s date of death, ownership of the asset and its location will determine whether a probate is necessary. If the value of all probate assets is less than $166,250, then these assets may be transferred via a small estate affidavit and without a formal probate. If an asset is held in trust or could have been in trust, if it is held in a joint tenancy or as community property or if it has a named beneficiary on a beneficiary designation form, then these assets transfer outside of probate. Lastly, if the asset is tangibly outside of California, such as a vacation home or intangibly outside of California, such as a business incorporated in another state, then these assets may transfer outside of California’s probate administration and according to another state’s laws.
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