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.
