Hello everyone and welcome back to Wills Trusts for GenzX and Y , where we do mystify and discuss California Wills Trusts and probate issues in plain English Christie Asselin , a Los Angeles-based attorney with wills and trusts clients all over California . Today we'll be talking about probate . Let's get started .
Probate is the process by which a court oversees the distribution of a deceased person's assets . Whether a probate petition needs to be filed will depend upon the value of the deceased person's estate and whether they had a trust .
If the deceased person had a good and I say good meaning drafted by an estate planning attorney funded trust , probate is not going to be necessary . However , if the estate value is above the statutory limit of $166,250 , then a probate action must be filed . Now , when I say value , I do not mean the net value , I mean the gross value .
In determining value for purposes of whether a probate petition needs to be filed , the court does not take into account mortgage . They're looking solely at the fair market value . If the value is under the threshold limit , probate may not be needed at all And even if it is a shorter , proceeding may be available .
You should definitely consult with an attorney to help you determine the best course of action . Now . Clients always ask how long this is going to take and how much is this going to cost me . Well , the process takes around 12 to 18 months and the cost will include any court filing fees , publication fees and appraisal fees .
In addition , there are executor and attorneys fees which are set by statute and not paid until the end of the case . By way of example , for a million-dollar state and remember , this value is based upon the gross value , not the net value the executor and attorney split around $46,000 in fees .
And again , remember , the payout is not for the attorney and the executor is not until the end of the case . On my website , lawyercmacom , in the probate section , you will see a probate administration roadmap which will help you to kind of visualize the steps I'm about to go over with you , so you might want to review that while listening to this .
The first step in the probate process is to file a petition with the appropriate court . This is typically done in the county where the deceased person lived . The petition will ask the court to appoint an executor or personal representative who will be responsible for managing the estate .
The court will also schedule a hearing to review the petition and any objections that may be raised . Hopefully , at the end of the hearing , you will walk away with letters , which I consider to be the gate openers . Letters are basically an order from the court .
With the letters in hand , you take responsibility for the estate administration and are free to contact banks and other account holders . Prior to those letters , you cannot do much in the way of investigating the deceased person's assets and liabilities because account custodians simply are not going to share information with you .
In addition , the letters allow you to take control of the assets and eventually distribute and disperse them . It's important to note that there are some different types of appropriate proceedings depending on the value and complexity of the estate . As I just mentioned , small estates may be eligible for a simplified process which can be faster and less expensive .
A probate attorney , again , can help you determine the best course of action for your specific situation . Once the executor or personal representative has been appointed , they will be responsible for gathering and inventorying all the deceased person's assets . This includes real estate , bank accounts , investments and personal property .
The assets will need to be appraised by a professional to determine their fair market value . The information will be used to determine the value of the estate and to prepare tax returns .
It's important to know that some assets may be exempt from the probate process , such as property held in joint tenancy , life insurance policies when they have designated living beneficiaries and retirement accounts with designated living beneficiaries . These assets will pass directly to the designated beneficiaries outside the probate action .
At this time , the executor needs to give notice to any known creditors that there is a probate action pending to administer the deceased person's assets . If any creditors then step forward and make a claim , the personal representative can accept , reject or partially accept . Partially reject the claim within 30 days of receiving the creditor claim .
If the claim is rejected , the creditor has an additional 90 days to file a lawsuit against the estate to recover the alleged claim . After all the assets have been identified and valued , the executor or personal representative will need to pay any debts owed by the deceased person , including taxes , funeral expenses and outstanding bills .
Once all the debts have been paid , the remaining assets can be distributed to the heirs named in the will or to the deceased person heirs at law . If there is no will , probate can be very complex and time-consuming , but it is necessary to ensure that a deceased person's assets are distributed according to their wishes .
By understanding the process involved , you can better be prepared to navigate the process and ensure that your loved one's estate is handled properly . If you have any questions or need assistance with the probate process , please contact me Again . I'm in Los Angeles , but handle probate actions throughout the state .
You can call my office at 818-248-2183 or book an appointment online at my website lawyercmacom .