What Happens During Probate?

Oct. 29, 2021

When someone passes away, the process of inventorying and distributing their estate usually falls into the hands of a family member or close friend. This is a more straightforward process if the deceased has filed a comprehensive estate plan that includes a trust and will—but unfortunately, this is often not the case. In fact, only 46% of U.S. adults have wills, a statistic that hasn’t changed much in the last 30 years. Loved ones who are left with the onerous task of managing an estate can find themselves with mountains of work and unforeseen expenses during the process of probate.

A qualified estate planning attorney can help you get through this tough time. Call the Law Office of Geoffrey Fong in Rocklin, California today for legal guidance on how to best get through probate.

What is Probate?

At its most basic, probate is simply the process of proving someone's will, or validating it in court. However, depending on the scope and comprehensiveness of the will, this can turn into a lengthy and costly process. Assets that are listed in the will must be accounted for, inventoried, assessed, and then distributed to the proper beneficiaries. However, not all assets will need to go through probate, and each state has different regulations on this.

In California, assets that total under $100,000 can be passed along to beneficiaries without going through probate. Additionally, many transfers that go directly to a surviving spouse can avoid probate. Another way to avoid probate is to use living trusts or a joint tenancy as a part of an estate plan. These must be done during one’s lifetime as it essentially moves ownership of certain assets into a trustee’s name.

If there’s only a will, the executor must start the probate process which can commonly take up to a year to complete. When a family is already grieving over the loss of a loved one, it can make the process that much more difficult. Often, the executor will hire an attorney to help with this process.

Probate in California

The probate process can be complex because it must take into account the laws of the deceased’s home state, as well as any state in which they held property or assets. Because of this, depending on where you are there’ll be a slightly different process.

The Probate Process

In California, the first step is identifying or appointing the executor or administrator of the will. If one was not named, or if the deceased did not have a will, the court will appoint one. This is usually a close family member. This person is then in charge of seeing the process through by first filing the will with the court and completing a form called a Petition for Probate.

Then the executor must find, inventory, and assess all the assets and develop an accounting system to keep track of them. They also must locate all the beneficiaries and notify them that they have assets in their name. Once this is done, the executor usually opens a bank account and procures a taxpayer ID number for the estate.

Additionally, executors are responsible for paying off any existing debts or taxes on behalf of the deceased. This can be done with money from the estate and creditors have four months to come forward to collect after the will has been filed. Once everything is accounted for and the court officially closes out the estate, the executor can begin distributing assets, with or without the help of the court.

How Experienced Legal Counsel Can Help

If this sounds like a lot of work, that’s because it is. The executor is often a surviving family member, usually an adult child who often has a full time job and family of their own to take care of in addition to managing the estate. Those who have found themselves as executor of a will should reach out to legal guidance. Located in Rocklin, California, the Law Office of Geoffrey Fong proudly serves all those living in the surrounding area, including Roseville, Folsom, and Citrus Heights. Schedule a consultation today.