The Main Misconceptions People Have About Probate
The number one misconception people have about probate is that having a will means no probate; all wills go to probate, whether it was a handwritten or typed, primarily because only the judge can sign over the assets to the beneficiaries.
Another misconception is that probate isn’t expensive when it is. Another misconception is that if a home has no equity, it won’t go through probate, when the amount of equity is actually irrelevant. In California, if you have an asset or assets that total more than $150,000, you will go through full blown probate, and for estates smaller than that, there are short form probates and an affidavit process. Many people think they don’t have that much, but if you have a house in California, you’re going to probate.
Is There a Way to Avoid Probate?
There are a few ways to avoid probate; that’s pretty much what I do in my practice. I’ve been doing estate planning for 24 years and my main job is to keep people out of the probate system. Many times, people will add someone to their bank account, so that when they die, the person gets the bank account, but that can be a dangerous proposition, since you’re giving someone half interest in your property and they can take it anytime they want.
The main way to avoid probate in California is to set up a revocable living trust. Whether they call it a Family Trust or Intervivos trust, it is a revocable trust which holds your assets while you’re alive; then, when you die, someone you designate will manage the trust assets and distribute them to your heirs based on instructions set out in the trust document. That’s how people in California stay out of the probate system.
If There is a Very Small Estate, Are There Other Simpler Options?
If the gross estate is less than $150,000 in California, you can do a small estate affidavit under California Probate Code Section 13100. Basically, that’s a declaration that simply names the decedent and the beneficiary and states that the total assets are less than $150,000, it is them signed and notarized and it is taken to various entities, such as banks, investment or mutual fund companies and they will distribute the assets. If there is a piece of real estate worth less than $150,000, there is a very simple process entitled a “petition to succession.” It takes about 90 days to get through but it’s a very simple and much less expensive proceeding.
How are Estate Creditors Handled?
When a probate is opened, a notice must be published in a newspaper, and any creditors you’re aware of must be notified of the death to let them know probate has been opened. Creditors generally have 120 days to file a “proof of claim” against the estate, which the executor will review and determine whether it is valid. If it is valid, the executor will pay it; if it is not valid, then some type of reasonable settlement will be negotiated and that is how all creditors get handled.
If the creditors miss the deadline, they’re out, they get nothing. The court is adamant that creditors only get a certain amount of time to claim a debt is owed to them so the court can get the probate administered, the assets distributed and the case closed. The courts don’t want to be tied up in creditor claims forever.
Do People Have Difficulty With Estate Creditors When Not Working With An Attorney?
When someone dies with an estate and creditors, they need to have competent counsel. Those who think they can do this without an attorney are asking for trouble; honestly, an attorney who represents himself has a fool for a client, so even an attorney shouldn’t represent himself in a probate proceeding, let alone an individual with no legal training. It’s a recipe for disaster; so when dealing in the probate system, they should be represented, protected and making sure they’re fully complying with the law.
Do the Beneficiaries Have to Actually Pay the Creditors from their Own Pocket?
The answer is no; when you file a probate, properly notice creditors and disclose all the assets, that is all that will be available to creditors. Often, when we have an insolvent estate, we negotiate settlements with creditors to try to get the beneficiaries some money. That happens a lot of the time when we have an insolvent estate but sometimes creditors fight to the death to get every last penny, so it all depends.
Sometimes, we can get the money to the beneficiaries and sometimes we can’t, but the bottom line is that beneficiaries are not liable for someone else’s death.
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