Probate is a lengthy process in which the court is required to oversee the handling of a descendant’s estate, including the distributions of assets. In California, it can take up to “1.5 years” and is a costly and complex procedure governed by the laws/statutes of the state legislature and put in motion by the probate code for California.
While often challenging and frustrating, California’s probate process is relatively straightforward compared to many other states. The executor’s responsibility is to follow state law to meet distinct requirements and deadlines for every step involved in California probate.
This is where a trusted probate attorney in tustin ca, will ensure that the necessary documentation is filed accurately and on time to avoid legal repercussions.
If there’s any possibility of avoiding probate, most executors might consider the option even though the cases are often resolved amicably. The process can be an emotionally draining one, time-intensive, and disruptive.
What Is Probate
Probate is a court-managed process of following the terms of the will, including distributing assets. Some states, like California, have a specific code that makes probate more complex and lengthier.
The California Probate Code details the steps to complete probate according to the state’s rules, many of which are comparable to other states.
Learn about California probate law by visiting https://www.ramseysolutions.com/retirement/california-probate-law. Here is what it involves:
– The estate manager will submit the descendant’s will to the county court and file a probate petition within 30 days following the deceased’s date of passing.
- The county court validates the will.
- The county court grants permission to the executor to administer the estate.
- The executor inventories and appraises the assets, along with paying taxes or accumulated debt.
- These details are submitted to the county court with a request for approval to distribute assets among the beneficiaries according to the will, which will be done upon approval.
- After debts are satisfied and assets are distributed, the executor petitions the county court to close the estate, ending the probate process.
The primary difference between California and other states is that California doesn’t have an individual probate court. The process goes through the local county court and is handled along with other court cases with substantial wait times, making what is already a lengthy process even longer.
When Is California Probate Required
California law requires eligible assets to be submitted for probate. The following are included in that process:
- Personal property such as furnishings, collectibles, or heirlooms
- Real estate, including a home or rental property
- Digital assets such as cryptocurrency
- Bank accounts
- Investments (stocks, bonds and on)
Business interests
Some assets will avoid probate. For instance, anything named to a specific beneficiary or transferred to a living trust. Simplified California probate versions will include a “spousal or domestic partner property petition” and a “small estate administration.
Small estate administration
A small estate administrates is valued below roughly $185,000. The assets in this administration can bypass probate, transferring them directly to the named beneficiaries instead.
The representative must wait “40 days from the descendant’s date of passing” to apply for the small estate administration and then submit what is referred to as an “affidavit” to the county court. They will confirm the estate’s value and request approval for a small estate administration to then avoid formal probate.
Spousal or domestic partner property petition
The probate process can be simplified for certain properties if you’re a spouse or registered domestic partner by filing this petition.
If approved, the county court will allow assets like investment assets, banking accounts, and real estate to forego formal probate and be distributed directly to the partner or spouse.
The simplified probate is often handled in a single court hearing, saving considerable time, sometimes as long as years, from a formal process.
How Long Is the Probate Process in California
California probate can take up to “nine months to 1.5 years or longer,” depending on the size of the estate and its complexity. Because the local county court handles probate, the duration will also depend on the court’s caseload.
Another consideration is whether a valid will has been drawn up. Without a will, the county court must take extra steps, including assigning a representative to manage the estate and locate beneficiaries.
The Costs of Probate in California
State law will determine the costs, which will vary based on the estate size and whether you invest in an accountant or an attorney.
A probate lawyer will usually charge a flat rate based on the estate’s total value, with the usual fees falling at roughly “0.5 to 4 percent” for estates falling “under $25 million in value.” The county court determines the rate. Typical costs associated with probate include:
- Estate taxes – these will be valued over the federal exemption of “$12.92 million. California is free of state-specific inheritance or estate tax.
- Court costs – notification and filing fees
- Probate bond fees
- Accounting services
- Miscellaneous services, including notary
Executor compensation is a common California probate expense. In the same vein as attorney fees, an executor’s compensation is detailed in the California Probate Code and depends on the estate value.
Can Probate Be Avoided in California
If probate is required for an estate in California and the executor doesn’t file, severe repercussions can occur. As the appointed executor, it’s not only your legal responsibility to act in the estate and beneficiaries’ best interests, but you have fiduciary duties to uphold. The repercussions you face by not filing can include:
- The estate assets won’t be transferred to the beneficiaries as designated in the decedent’s will
- Creditors must extend their collections for debt
- Estate closing will be prevented
- The county court will assign a new executor
As the appointed executor, not filing probate can result in severe legal repercussions if neglecting probate is a purposeful act or you’re entirely avoiding your assigned duties as executor.
Not only can you be removed from the assigned position, but you can be held liable for fines and penalties or the possibility of criminal charges. Read here to learn if you can legally avoid probate in California.
Final Thought
As mentioned, smaller or spousal/partner estates can bypass probate in a few cases. The priority is to have either a trust or will lined out to ensure a simple process for those you love.
Investing in a reputable, qualified estate planning attorney can give you peace of mind, knowing there will be minimal stress or hassle.