Probate

What is Probate and When is it Necessary in Orange, California?

If you have found yourself responsible for administering the estate of a loved one who recently passed away, you are also now facing the reality of spending months or years inside the probate process. Fortunately, not every estate is required to go through a formal probate. Also, certain assets can legally bypass the probate process completely. Given the severe consequences that can follow making a mistake in a probate case, you should always consult with an experienced probate attorney before concluding that an estate is not required to go through probate in Orange, CA.

Probate is the legal process that is usually required after the death of an individual occurs. The probate serves several essential functions for the estate, such as:

• Making sure that all that the decedent’s assets are identified, located, and accounted for.
• Authenticating the Last Will and Testament.
• Litigating any challenges to the Will.
• Notifying any creditors of the estate and providing them with the opportunity to file claims.
• Calculating and paying the final income taxes that were due by the decedent.
• Calculating and paying the income taxes on any income earned by the estate during the estate administration process.
• Calculating and paying any gift or estate taxes that are owed by the estate.
• Paying all the creditor claims that are allowed by the executor or the administrator.
• Showing to the court and beneficiaries, through careful accounting, all income received and expenses paid throughout the probate process.
• Transferring assets to the intended beneficiaries.

The formal probate process can be a very expensive endeavor, both in time and in money. Since the creditors of the estate have to be given four months in which to file a claim, it typically takes at least seven months for even a rather modest estate to make it through the entire probate process. Often, the large number of expenses involved in probating an estate can severely diminish the value of that estate, which is ultimately passed down to the decedent’s loved ones. Your probate attorney can help to streamline the process and preserve as much of the estate as possible.

Is Probate Ever Not Necessary in Orange, California?

The time and cost of a formal probate are not always legally required in order to distribute an estate’s assets in California. There are situations and assets which may not require probate:

• Non-probate assets: Non-probate assets are legally allowed to bypass probate and can be distributed immediately after the death of their owner. Non-probate assets include:
  • Assets that are held in a trust.
  • The proceeds of a life insurance policy.
  • Specific types of jointly owned properties.
  • Accounts that have been designated as payable on death (POD) or transfer on death (TOD).
  • Many types of retirement accounts.
• An estate consisting of personal property valued at less than $150,000: If an estate does not include real property, such as a house, and only consists of personal property, the assets that make up the estate might be able to be distributed by your probate attorney using an affidavit. All the beneficiaries of the assets would be required to sign the affidavit and then you must wait 40 days after the death before you may initiate the transfer of the assets.
• If the estate consists of personal property and real property valued at $150,000 or less: If the estate includes real property as well as personal property but is still worth less than $150,000, then your probate attorney might be able to file a petition to determine succession to real property. The probate attorney would file the petition with the court and would also need to file an inventory and appraisal, and a notice of hearing. In order for you to legally sign the petition, you must have the right to inherit the property. You must also wait 40 days after the death before initiating this procedure.
• If you are were married to the decedent: If you were the decedent’s spouse or his or her domestic partner, your probate attorney can file a spousal or domestic partner property petition in probate court. This will result in a court order that will have to determine what the spouse’s share of the community property should be and what part of the deceased spouse’s share of both the community and the separate property should now belong to the surviving spouse.

Contact an Orange, CA Probate Attorney

If you have any questions or concerns regarding the probate of a loved one’s estate in Orange, California, contact the experienced California probate attorneys at the Law Office Of Chris T. Nguyen to schedule an appointment for a complimentary case review. Our probate attorneys are equipped to handle all types of probate matters in Orange, California and the surrounding areas.