What is probate and how does it work in California?


People in California may have questions about how the legal process of transferring assets and property after a person's death occurs. This legal process in general is referred to as probate, although the process can vary greatly, depending on the circumstances. In general, a well-written and valid will can help a person avoid a lengthy and involved probate process, but in some circumstances, probate is a necessary and unavoidable step.

Every person in California should have a valid and enforceable will drawn up, long before they get sick or elderly. Dying without a will is one of the biggest mistakes a person can make as this person will have no control over what happens to their assets after their death.

Every will should name at least one person, and an alternate, in case something happens to the first person, to act as the executor of the estate. If there is no will, the probate court will be required to assign an executor or administrator to handle the duties associated with the administration of the estate. This includes dealing with creditors, accounting for assets and settling issues relating to the ownership of joint property, if necessary. Finally, after accounting for all assets and paying off debts and legal fees of the estate, the remainder of the estate will pass to the beneficiaries.

Every will should also name specific beneficiaries to the extent possible, otherwise, the assets will pass based on state laws. Generally, California law provides the right to inherit to the deceased person's spouse and immediate family first, but, in some cases, other less-connected individuals may be entitled to a share of the estate.

Probate can be an expensive and lengthy process, so the goal of every estate planning attorney is to help their clients avoid probate as much as possible. Even if probate is necessary due to certain circumstances, the attorney should be able to act as the administrator and representative of the estate during the probate process.

Source: Courts.ca.org, "Wills, Estates, and Probate," accessed on Aug. 29, 2014

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