Monday, June 25, 2012

How Does Probate Law Work?


When a person dies, ownership of theproperty, assets and personal effects must be passed on or legally transferred to the beneficiaries or heirs, listed in the Will.  If there is no Will, the individuals receiving assets are designated by law. "Probate" is the legal name given to this process.

First, the Will must be verified as the valid, final dispositive statement of the decedent (the official record of the deceased person's final wishes).  The Will generally names the person or institution appointed to administer (manage) the probate estate process. When there is no valid Will, State law will dictate as to who receives the assets of the deceased.

Probate is the legal process by which a court-appointed Executor or Administrator takes over the deceased affairs and property.   In the case where there is no Will, the Administrator then identifies and locates the heirs.   The Executor or Administrator also accounts for all the deceased’s assets and properties.  He  or she oversees payments of the deceased’s debts, including unpaid taxes.  The Executor or Administrator may have to sell off some of the deceased’s assets and properties in order to pay bills, taxes and expenses of the estate. Then, if there are properties and assets remaining these can be distributed to the approved heirs and beneficiaries.

The probate process can be as short as six months and as long as two to four years depending on State laws regarding creditors’ claims, property to be sold, tax liabilities, disputes among heirs, and backlog in the courts.

The Executor or Administrator is accountable to the Will beneficiaries or the heirs if there is no Will; thus, he must perform his duties in a fair and legal manner.  If any doubts exist as to the competency of the personal representative, the probate court may intervene and oversee the performance of the Executor or Administrator.   The personal representative, for his efforts, is entitled to a “commission” for these services as set by statute.

Probate law may allow for partial distribution prior to the final distribution and liquidation of the estate.  During the period of administration; some property and assets may be distributed rather than sold during this time.  Inheritance tax laws will usually require the personal representative to handle the filing and making of tax payments. Thus, it is very critical to choose the right Executor when executing a Will.

The job of estate administration and accounting must be done regardless of whether an estate goes through the probate process or even if probate is avoided outright.  Estate planning lawyers have advocated the use of probate avoidance techniques (which includes the use of revocable Living Trusts) in states where the probate process was seen as being time-consuming and expensive.  Several U.S. States have adopted the Uniform Probate Code or simplified their probate processes over the years.

Since the probate process in California can be long and expensive it is best to avoid it.  Often times if there is no Will and the estate must go through this process, the estate often pays much higher taxes and of course legal fees.  If you have any assets it is best to hire an Estate Planning attorney to handle your estate planning.  If a family member has passed away who had no Will, unfortunately at this point it is too late to plan, so it is best to hire a Probate lawyer to help you through this long and arduous process.