Tuesday, July 10, 2012
Delays: The Biggest Reason to Avoid Probate in California
Probate is a legal procedure of authenticating the will of a deceased person and making sure that the person’s estate is distributed following the wishes of the person or state law (in the absence of a will). In the process, all obligations and debts of the decedent must be settled prior to the distribution of the estate to the named heirs.
The procedure seems simple enough. However, the probate process can be extremely time-consuming. More than the dollars and cents involved; the time involved in administering a probate in California may be a more compelling reason to avoid a probate.
Massive cuts in the budget have caused widespread layoffs in the courts of California. This has resulted in further backlogs, not only in probate cases, but even in divorces and simple traffic violations. With these layoffs, I believe a probate case will now take up to 2 years to settle. This will be especially difficult to heirs who need their inheritance right away.
What does this mean? It simply points to time and the delays incurred as the biggest reason to avoid probate, especially in California. Delays in the probate process not only mean that the legal heirs will have to wait longer to get their inheritance; they will receive their inheritance after the deductions of court fees and costs. It must be noted that, in legal procedures, longer court procedures will result in higher court costs.
So that you understand how this process works, probate begins with the appointment of an Administrator or Executor who will oversee the entire probate process. Then there is the process of validating that the will is authentic and prepared by the decedent with a sound mind. This involves studying the document and certifying that it isn’t forged. Then, there is the process of identifying and assessing the assets in the estate. The process also involves informing creditors of the probate process so that they will come forward and collect what is due them. The debt will be paid or from the estate. The remainder of the estate will then be distributed to the heirs designated by the decedent.
As probate is a legal process, the procedure is handled by the courts. For simple estates, probate can be as short as six months in the less impacted counties. This, however, is the exception. Bigger, higher valued and more complicated estates will undergo a probate process that may take one to three years – and possibly more. Other delays beside court layoffs are often caused by people contesting the valuation of the estate and the ownership of the estate (whether it is solely owned by the decedent or he/she is simply part owner of the asset). A very common cause of delay is court lawsuits filed by people claiming to be legal heirs. You can imagine people wanting to have a piece of the pie, so to speak.
The creditors may also cause delay as they may file suits as to the exact amount of the obligation and time frame they would like to give the decedent. The executor also may be a factor in the delay. If the executor fails to act or acts very slowly, he or she will delay the procedure.
I help people protect their families through affordable, personalized estate planning. Tompkins-Law.com I am in solo practice in Orange County, California where I focus on estate planning, family trusts, living trusts, wills, corporations and business succession planning. I speak Spanish and serve the latino community. Fideicomisos-Testamentos.com