What Is Probate?
At its core, probate is a fairly simple concept—it exists to file and validate any will documents created by the deceased. When an individual passes away, their assets and debts must be distributed and paid, respectively. Instead of leaving the assignation of assets and debts to an individual or the grieving family, probate is intended to allow the court to administer the estate and handle any disputes that arise.
The probate court has several important duties throughout the administration process. The court must assess the deceased individual’s assets, settle all debts and taxes with any debtors, and distribute the remaining assets to any heirs as defined in the will. If the decedent dies without a will or a living trust, the estate will need to be distributed fully in probate. The court is also charged with identifying an executor, or personal representative—usually a surviving spouse, adult child, or other trusted individual named in the decedent’s will—to summarize and value the assets, pay outstanding bills, and enable the court to distribute assets to the beneficiaries. In general, probate court works with the executor to enable the closure of the estate.
On the surface, the probate process sounds quite straightforward. However, more often than not, probate court is not a simple experience, especially if the decedent failed to create a will or if there are disputes regarding the estate. Probate can be a highly bureaucratic process, full of legalese and complications. It can also take a long time in some instances, delaying the distribution of assets.
If you are facing Folsom probate court, it is time to reach out to a trusted estate attorney. With an attorney’s guidance, the probate process can feel far more manageable. An attorney can help you ensure each step is completed thoroughly and on time, speeding the probate proceedings as much as possible.
What Does a Probate Lawyer Do For You?
When you hire a Folsom probate lawyer, you will have someone to guide you through the entirety of the probate process, either as a beneficiary of the estate or as executor of the will. As mentioned, the probate process is complex, and involves a number of in-depth steps to fully complete. As executor, you must identify the assets held in the estate and accurately summarize them for the court. Similarly, you must identify any debts or taxes owed and ensure the estate settles each before distribution of the remaining assets. Through each step, your experienced probate attorney will be at your side.
A probate attorney can also manage disagreements regarding the estate, whether you are the executor or a beneficiary. Depending on the quality and specificity of the will, conflicts can arise regarding the final wishes of the decedent. If the circumstances under which the will was drafted were uncertain, is also possible for individuals to challenge the will’s validity, altogether. Since the probate process begins with validating the will, when this sort of complicated situation occurs, a probate attorney can be an invaluable asset to your case.
The responsibilities of a probate attorney are also dependent upon the overall value of the deceased individual’s assets and the complexity of the estate. In addition, a probate attorney can be especially beneficial if the decedent did not leave behind a will or trust. When this scenario occurs, California courts must use the laws of intestate succession to name an executor and distribute assets. Disputes commonly arise under these circumstances, making a Folsom, California probate lawyer an essential component of settling the estate.
Sometimes, you will see the terms probate lawyer and estate attorney used interchangeably. Estate attorney is also an accurate term, and refers to the lawyer’s direct involvement with the estate of the deceased individual.
How Long Does Probate Take in California Without a Will?
Most individuals are well aware that probate can be a lengthy and often exhausting process. However, how long does this process actually take? How much time can you expect to be added to the probate process if the deceased individual has not left a last will and testament?
The simple answer is that there is no truly simple answer—time in probate depends heavily on the caseload of your probate court, the size and complexity of the estate, and other factors unique to each individual case. On average, a California estate may spend about 12 months in probate. Some simple estates can make it through the probate process in around nine months, while others may take well over a year or even two.
Keeping this 12-month baseline in mind, there are a few circumstances that can slow down the probate process. For example, if there are an especially large number of beneficiaries, the probate process is likely to be delayed due to the necessary distribution of assets to multiple individuals. In addition, when there are many beneficiaries, there is a greater likelihood that disputes will occur. If a will is unclear, difficult to validate, or challenged by a beneficiary, the process will take much longer. Finally, if the estate owes taxes, probate court must wait until the proper paperwork has been submitted to the IRS and received a response, which can take up to nine months.
If the decedent did not create a will, the probate process will take even longer than the 12-month average. A party will need to petition the court to act as executor of the deceased’s estate. In instances where multiple parties are interested, the court will decide based upon the parties’ qualifications. Finally, California intestate succession statutes must be used to determine the distribution of assets, which often causes additional disputes and other challenges that may further lengthen the process.
Avoiding Probate Court With a Trust
As we have established, probate court is rarely enjoyable for anyone involved and has earned its reputation as a draining, complicated procedure. For this reason, most individuals would rather their beneficiaries avoid probate entirely. Fortunately, a skilled probate lawyer and estate lawyer can help you craft a strategy to distribute your assets without forcing your beneficiaries to endure probate.
One of the most commonly accepted methods of avoiding probate court is by establishing a trust. Essentially, a trust assigns another party, known as a trustee, the responsibility of holding your assets and then distributing them according to your wishes after your death. If you choose a living trust, you can retain ownership of all assets within the trust during your lifetime, and add or remove assets as necessary. After your death, assets and bills are handled automatically without the need for probate. However, in most cases, even if you establish a living trust, you will still need to create a simple will, especially if you need to appoint guardianship for any minor children.
While living trusts are an ideal solution for many individuals, they are far from perfect. It takes time to adequately prepare a living trust, often longer than it takes to create a will. Trusts also entail a good deal of ongoing maintenance, especially if you must add or remove assets and beneficiaries. Adjustments to a trust can also prove complicated as compared to a simple will, and depending on your estate, it is not always a wise idea to create a living trust solely because you’d like to avoid probate court. However, an estate attorney can help you determine whether a trust is right for you, and ensure any ongoing maintenance and adjustments are handled properly.