Tuesday, February 19, 2013

Even an Uncontested Probate takes Several Steps, says an Orange, CA Estate Planning Attorney


In California, many estates undergo probate after the estate owner passes away.  The probate process is meant to allow the estate to settle its debts and taxes and then distribute the remaining assets to the beneficiaries.  When there are disputes among beneficiaries, the probate can be a protracted process. 

                However, there may be instances when no one contests the probate.  Here, the beneficiaries agree that the will is valid and are content with their share of the estate.  (If the Will was executed properly with the help of an estate planning attorney from Orange County, the probate will most likely not face any challenge.)  Even with an uncontested probate, however, there are still several steps to be taken and the entire process may still take months. 

                The probate process begins with the death of the estate owner.  The personal representative then locates the will and delivers it to the Executor or the Clerk of Court. The Executor then makes a petition with the court for a Probate of the Will or a Letter of Administration. Even if the probate is uncontested, the court will conduct a hearing on the petition.  The Court then issues Letters of Administration.   This is followed by a notice to the creditors.  The notice is required to be published in major broadsheets so that the creditors will be apprised of the testator’s death.  This stage will take time since California law stipulates a four-month time frame for the creditors to file their claim before the probate court.

                Even as the probate court is waiting for creditors to file their claims, the Court appoints an independent probate appraiser who makes an inventory and assessment of the testator’s estate.  The appraisal is intended to give a fair market value of the decedent’s estate.

                The Executor also files federal estate tax returns.  It is possible that the estate does not owe the federal government estate taxes.  In such a case, the Executor will simply state “No Tax Due” on the estate tax returns.  Or he may pay a specific amount as stipulated by law.

                Having settled the estate’s obligations, the Executor is now ready to distribute the assets to the named beneficiaries.  He files for a petition of distribution.  Then, with the probate court overseeing the process, the Executor distributes the assets to the beneficiaries. After distributing the assets, the Executor then asks the court to issue a final decree of distribution.  The Executor and his attorney then receive their compensation. As a formality, the court discharges the personal representative or Executor.  Through all this time, it is good if the beneficiaries are assisted by an estate planning attorney from Anaheim.

                At this point, the probate is considered “closed” – without any disputes.  Still, the uncontested probate may take from six to eight months – much shorter than a contested probate.  Your estate planning attorney may help you when you execute your will to minimize the chances of contests in the future.