Probate

Probate is the name for the entire legal proceeding in a probate court to determine how to distribute the estate of a deceased. 

Probate is the legal mechanism whereby a court states who gets the estate. Probate of a deceased’s estate is necessary when the decedent did not plan his final affairs beyond preparing a Will. Appropriate estate planning avoids probate altogether while providing for the immediate transfer of the estate to the designated heirs.

Probate proceedings are long, cumbersome and expensive. They are avoidable with proper estate planning. In recognition of the difficulties and expense of probate many states have enacted laws waiving probate or streamlining procedures for small estates (usually under $60,000). These summary probates usually involve nothing more than filing petitions with the court stating that the estate is too small to be managed effectively and that it should be distributed without administration to the heirs. Summary probate procedure is available only for small estates. Above a certain value, usually $60,000, a regular probate is required. A person whose estate exceeds $60,000 should develop a simple estate plan and avoid probate.  (MICHAEL LYNN GABRIEL, Esq.)

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A common misconception is that probate exists as a means for the state or federal government to collect taxes. That is not the case. Estate and inheritance tax rates are based on the size of the estate and the relationship of the heirs to the deceased. It is irrelevant to the taxing entities whether or not a probate is conducted when determining the tax liability.

For example, assume that a person gives $800,000 at his death to his children. It makes no difference if the $800,000 comes to the children from probate or through a revocable trust. There is greater cost if the estate is probated rather than passing it through a trust, but the tax rates are the same. The tax is on the money and property distributed after death, not whether or not it comes from probate.

Some states will freeze jointly-held property (such as bank accounts, real estate and brokerage accounts) until the taxing entities have time to assess the value of the decedent’s interest in the property.

There is a lifetime federal unified credit for gift and estate taxes of $1,000,000 through 2004. Then for estates it rises to an unlimited amount in 2010 and then reduces to $1,000,000. For gifts, the exemption remains at $1,000,000. This means that no federal estate taxes will be owed unless an estate exceeds the unused portion of the unified credit (the unified credit amount minus the value of lifetime gifts). Under the Internal Revenue Code, a personal representative can file a request with the IRS (and sometimes the state taxing agency) for a final assessment of the taxes owed by the estate. The IRS has three years in which to assess additional taxes. If the personal representative makes a request for a prompt assessment, the IRS has to complete the assessment within 18 months. After the assessment is done, the personal representative can pay the tax, distribute the remaining estate to the heirs and be discharged without any liability for future taxes. (MICHAEL LYNN GABRIEL, Esq.)

Probate costs include court fees, appraisal fees, attorney fees and executor fees. Court costs and appraisal fees are modest: a couple of hundred dollars for an average estate. The real costs are the attorney and executor fees. (Lawyer at large.com)

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California Probate Code

AFFIDAVIT PROCEDURE FOR REAL PROPERTY OF SMALL VALUE 13200-13210

13200. (a) No sooner than six months from the death of a decedent, a person or persons claiming as successor of the decedent to a particular item of property that is real property may file in the superior court in the county in which the decedent was domiciled at the time of death, or if the decedent was not domiciled in this state at the time of death, then in any county in which real property of the decedent is located, an affidavit in the form

Affidavit of Real Property less than $20k

prescribed by the Judicial Council pursuant to Section 1001 stating all of the following:

(1) The name of the decedent.

(2) The date and place of the decedent’s death

. (3) A legal description of the real property and the interest of the decedent therein.

(4) The name and address of each person serving as guardian or conservator of the estate of the decedent at the time of the decedent’s death, so far as known to the affiant.

(5) “The gross value of all real property in the decedent’s estate located in California, as shown by the inventory and appraisal attached to this affidavit, excluding the real property described in Section 13050 of the California Probate Code, does not exceed twenty thousand dollars ($20,000).”

(6) “At least six months have elapsed since the death of the decedent as shown in a certified copy of decedent’s death certificate attached to this affidavit.”

(7) Either of the following, as appropriate:

(A) “No proceeding is now being or has been conducted in California for administration of the decedent’s estate.”

(B) “The decedent’s personal representative has consented in writing to use of the procedure provided by this chapter.”

(8) “Funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.”

(9) “The affiant is the successor of the decedent (as defined in Section 13006 of the Probate Code) and to the decedent’s interest in the described property, and no other person has a superior right to the interest of the decedent in the described property.”

(10) “The affiant declares under penalty of perjury under the law of the State of California that the foregoing is true and correct.”

(b) For each person executing the affidavit, the affidavit shall contain a notary public’s certificate of acknowledgment identifying the person.

(c) There shall be attached to the affidavit an inventory and appraisal of the decedent’s real property in this state, excluding the real property described in Section 13050. The inventory and appraisal of the real property shall be made as provided in Part 3 (commencing with Section 8800) of Division 7. The appraisal shall be made by a probate referee selected by the affiant from those probate referees appointed by the Controller under Section 400 to appraise property in the county where the real property is located. (d) If the affiant claims under the decedent’s will and no estate proceeding is pending or has been conducted in California, a copy of the will shall be attached to the affidavit. (e) A certified copy of the decedent’s death certificate shall be attached to the affidavit. If the decedent’s personal representative has consented to the use of the procedure provided by this chapter, a copy of the consent and of the personal representative’s letters shall be attached to the affidavit. (f) The affiant shall mail a copy of the affidavit and attachments to any person identified in paragraph (4) of subdivision (a).

General Probate Questions – FAQ’s

 WHAT IS “PROBATE”?

 WHAT DO ALL THESE COMPLICATED WORDS MEAN?

 WHY IS PROBATE NECESSARY?

 DOES ALL A PERSON’S PROPERTY HAVE TO GO THROUGH PROBATE?

 WHERE IS PROBATE HANDLED?
 WHAT IF THE DECEDENT OWNED LAND IN MORE THAN ONE STATE?

 DO WE HAVE TO GO THROUGH PROBATE IF THERE IS A WILL? WHY CAN’T WE JUST DISTRIBUTE THE ASSETS AS THE WILL SAYS?

Contesting a will or trust PJ Hoskins, Esq.

 WHO IS RESPONSIBLE FOR HANDLING THE PROBATE PROCESS?

 WHAT ARE THE MAIN DUTIES OF A PERSONAL REPRESENTATIVE?

 I WAS NAMED AS THE EXECUTOR IN MY SISTER’S WILL. DO I HAVE TO SERVE?

 IF I SERVE AS AN EXECUTOR, DO I GET PAID?

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WHAT HAPPENS IF THE PERSONAL REPRESENTATIVE FAILS TO PERFORM HIS OR HER DUTY?

 WHAT GOES ON IN THE PROBATE OF AN UNCONTESTED WILL?

 CAN I HANDLE PROBATE WITHOUT A LAWYER?

 WHAT IF SOMEONE OBJECTS TO THE WILL?

 WHAT IS THE BASIS FOR A WILL CONTEST?

 WHAT IF THERE IS NO WILL?

 WHAT HAPPENS IF A WILL CANNOT BE FOUND?

 HOW CAN I FIND OUT IF THERE WAS A WILL?

 HOW MUCH DOES PROBATE COST?

 HOW LONG DOES PROBATE TAKE?

 HOW CAN I AVOID PROBATE OF MY ESTATE?

 MY RELATIVE LEFT ONLY A VERY SMALL ESTATE. IS THERE ANYTHING EASY?

 HOW ARE ESTATE CREDITORS HANDLED?

 DO BENEFICIARIES HAVE TO PAY CREDITORS OUT OF THEIR OWN POCKET IF THE ESTATE IS INSOLVENT?

 HOW ARE TAXES HANDLED IN PROBATE?  Tax
 MY DECEASED AUNT HAD A COPY OF HER ORIGINAL WILL FROM A LAW FIRM THAT EXECUTED HER WILL. THE LAW FIRM NOW STATES THAT THEY ONLY HAD A DRAFT; HOWEVER, OUR COPY HAS TWO WITNESSES SIGNATURES, MY AUNT’S SIGNATURE, THE NOTARY’S PUBLIC SIGNATURE AND THE LAW FIRM’S BUSINESS STAMP. MOREOVER, WE ARE TOLD THAT THE COPY IS INVALID AND THERE IS NO WILL AND THE ORIGINAL CANNOT BE FOUND. THUS, THE PROBATE COURT WILL DECIDE WHO THE ESTATE WILL GO TO. WHAT CAN WE DO TO ENSURE THAT MY AUNT’S WILL IS CARRIED OUT AS SHE REQUESTED?

 MY HUSBAND DIED RECENTLY. HIS DENTIST WANTS ME TO PAY THE REMAINDER OF HIS BILL. AM I LIABLE?

 MY DAD LEFT HIS AFFAIRS IN THE HANDS OF MY BROTHER, ONE OF 4 KIDS. THOUGH HE HAS BEEN NAMED TO HANDLE THE TRUST, SELL AND DISTRIBUTE THE PROPERTY AND FUNDS, MONTHS HAVE PASSED AND NOTHING HAS BEEN DONE. CAN HE BE REMOVED FROM THE TASK?

 MY FATHER JUST DIED AND OUT OF NOWHERE MY YOUNGEST BROTHER POPS UP WITH A WILL NAMING HIM AS PERSONAL REPRESENTATIVE. THOUGH IT APPEARS THE WILL WAS DRAWN UP BY AN ATTORNEY, THERE ARE A NUMBER OF ERRORS, SUCH AS REFERENCE TO A NONEXISTENT BROTHER AND THE REPEATED USE OF MY FATHER’S NAME WITH THE WRONG MIDDLE INITIAL. IS THERE ANY WAY WE CAN HAVE CHALLENGE THE VALIDITY OF THIS WILL?

 THE BANK HOLDING MY DECEASED MOM’S CD WILL NOT DISTRIBUTE THE FUNDS TO HER ESTATE WITHOUT HER WILL BEING PROBATED. CAN THE BANK REQUIRE MY FAMILY TO GO THROUGH THAT PROCESS?

Probate process

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 WHERE IS PROBATE HANDLED?

 HOW LONG DOES PROBATE TAKE?

 HOW MUCH DOES PROBATE COST?

 MY RELATIVE LEFT ONLY A VERY SMALL ESTATE. IS THERE ANYTHING EASY?

 MY FATHER JUST DIED AND OUT OF NOWHERE MY YOUNGEST BROTHER POPS UP WITH A WILL NAMING HIM AS PERSONAL REPRESENTATIVE. THOUGH IT APPEARS THE WILL WAS DRAWN UP BY AN ATTORNEY, THERE ARE A NUMBER OF ERRORS, SUCH AS REFERENCE TO A NONEXISTENT BROTHER AND THE REPEATED USE OF MY FATHER’S NAME WITH THE WRONG MIDDLE INITIAL. IS THERE ANY WAY WE CAN HAVE CHALLENGE THE VALIDITY OF THIS WILL?

 THE BANK HOLDING MY DECEASED MOM’S CD WILL NOT DISTRIBUTE THE FUNDS TO HER ESTATE WITHOUT HER WILL BEING PROBATED. CAN THE BANK REQUIRE MY FAMILY TO GO THROUGH THAT PROCESS?

Purpose of probate

 WHAT IS “PROBATE”?

 WHY IS PROBATE NECESSARY?

 DO WE HAVE TO GO THROUGH PROBATE IF THERE IS A WILL? WHY CAN’T WE JUST DISTRIBUTE THE ASSETS AS THE WILL SAYS?

 HOW CAN AN ESTATE PLAN PREVENT A CONSERVATORSHIP PROCEEDING?

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The other 49 States

Ways to avoid probate

 HOW CAN I AVOID PROBATE OF MY ESTATE?

 WHAT PROTECTION IS AVAILABLE BY A REVOCABLE “LIVING” TRUST?

Executor or administrator

 WHO IS RESPONSIBLE FOR HANDLING THE PROBATE PROCESS?

 WHAT ARE THE MAIN DUTIES OF A PERSONAL REPRESENTATIVE?

 I WAS NAMED AS THE EXECUTOR IN MY SISTER’S WILL. DO I HAVE TO SERVE?

 IF I SERVE AS AN EXECUTOR, DO I GET PAID?

 WHAT HAPPENS IF THE PERSONAL REPRESENTATIVE FAILS TO PERFORM HIS OR HER DUTY?

 WHAT GOES ON IN THE PROBATE OF AN UNCONTESTED WILL?

 MY DAD LEFT HIS AFFAIRS IN THE HANDS OF MY BROTHER, ONE OF 4 KIDS. THOUGH HE HAS BEEN NAMED TO HANDLE THE TRUST, SELL AND DISTRIBUTE THE PROPERTY AND FUNDS, MONTHS HAVE PASSED AND NOTHING HAS BEEN DONE. CAN HE BE REMOVED FROM THE TASK?

 MY FATHER JUST DIED AND OUT OF NOWHERE MY YOUNGEST BROTHER POPS UP WITH A WILL NAMING HIM AS PERSONAL REPRESENTATIVE. THOUGH IT APPEARS THE WILL WAS DRAWN UP BY AN ATTORNEY, THERE ARE A NUMBER OF ERRORS, SUCH AS REFERENCE TO A NONEXISTENT BROTHER AND THE REPEATED USE OF MY FATHER’S NAME WITH THE WRONG MIDDLE INITIAL. IS THERE ANY WAY WE CAN HAVE CHALLENGE THE VALIDITY OF THIS WILL?
Creditors

 DO BENEFICIARIES HAVE TO PAY CREDITORS OUT OF THEIR OWN POCKET IF THE ESTATE IS INSOLVENT?

 MY HUSBAND DIED RECENTLY. HIS DENTIST WANTS ME TO PAY THE REMAINDER OF HIS BILL. AM I LIABLE?

 HOW ARE ESTATE CREDITORS HANDLED?

 IF MY PARENTS DIE WITH A MOUNTAIN OF DEBT, MORE THAN THE ESTATE IS WORTH, IS THE PAYMENT OF THE DEBT THE RESPONSIBILITY OF THE CHILDREN?

Legal help

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 CAN I HANDLE PROBATE WITHOUT A LAWYER?

 MY RELATIVE LEFT ONLY A VERY SMALL ESTATE. IS THERE ANYTHING EASY?

Property outside probate

 DOES ALL A PERSON’S PROPERTY HAVE TO GO THROUGH PROBATE?

 WHAT IF THE DECEDENT OWNED LAND IN MORE THAN ONE STATE?

 

 

 

Other pages in the Life Insurance and Estate Planning Section

Our webpage on Probate Conservatorships– where someone isn’t too bad, but can’t take care of their money

 

 

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