There are two ways in which a deceased person’s estate is addressed in California:
- The terms set forth in a will
- Probate court if there is no will, the will contains errors, or the will is contested
Probate is the legal process during which the court distributes assets according to the terms of the will or state law. California has two types of probate proceedings:
- Full probate for estates valued more than $166,250
- Simplified probate for valued at $166,250 or less, or for certain other conditions such as the value of real property or how ownership of real and other property is registered on the deed or other ownership documents.
A will alone is no guarantee that probate will be avoided. An estate plan that includes a will and trust is the best legal way to avoid probate in San Luis Obispo County and California and to be sure that assets are distributed to heirs and other beneficiaries according to your wishes.
How probate works
When probate is necessary, someone, usually a family member or the executor named in the will, files a petition with the Superior Court in the county where the deceased resided. California law also requires that a copy of the will be filed with the court clerk.
If there is no will, the person filing the petition for probate can also ask the court to be appointed as the administrator of the estate. The court can also appoint an estate administrator of its own choosing.
Generally speaking, the court oversees the executor or administrator as assets are collected, creditors are paid, and assets distributed to heirs and beneficiaries. The court resolves any conflicts or contests to the estate. The court also sets timelines for certain tasks to be completed and makes the final determination to distribute assets to heirs.
This is a simplified explanation of what can be a quite complex process. The larger the estate, the more complex the probate process because collecting assets, settling accounts, and distributing what is left may be very detailed. Unhappy heirs can also complicate the process, resulting in the court deciding which heirs get which assets.
Probate is not a process that is easily challenged and in the absence of an estate plan, getting legal advice is the best way for most heirs and administrators to approach probate.
Decisions about your estate
Anyone who has assets they want to leave to heirs would be well-served to consult an attorney about the best way to be sure their wishes are carried out. People are often surprised to learn the value of some of their possessions. Other assets like the family home, bank accounts, even vehicles can be subject to probate under certain circumstances, even with a will. Decisions by the probate court can take months and even a year or more in some cases.
Even if, at the end of probate, your wishes are carried out, your heirs will have to wait for the court to finally authorize the distribution of your assets.
Toews Law Group, Inc. counsels individuals, executors or administrators on whether assets can be transferred without probate or whether a court proceeding is required. The firm prepares all the documents that need to be filed when probate is required, such as petitions, accountings, and statutory notices.
The San Luis Obispo probate attorneys also advise individuals about preparing wills, and all aspects of estate planning.