There are different types of wills available in California. Some wills specifically take care of property matters while others take care of an individual’s welfare and health. A will is a document that clearly indicates a person’s wish on how their assets and property would be distributed following his or her death. The document also outlines the names of those who will inherit these assets and property. It also indicates the name of an executor for the estate, who is solely given the obligation of overseeing the assets and property distribution process and making sure that it’s done in accordance to the terms of the will. Through a will, parents can be able to appoint a custodian for their minor children.
To avoid ending up with a void document, it’s important for one to revise and update the will throughout their lifetime. This is to ensure that changes in events like birth, divorce, marriage, death, and adoption are addressed as they take effect. In California, all wills must be validated through probate. If a will is found to be invalid, the individual’s assets and property will then be distributed based on California’s intestacy laws, which may distribute the property in contrast to the person’s wishes.
In such situations, the heir will inherit all the property and this means that any beneficiaries will be left out. It’s, therefore, essential to work with an experienced estate planning attorney throughout the process of creating, revising, and updating your will. The attorney will give the necessary legal advice needed to make sure that your property and assets are divided in accordance with the terms of your will.
Generally, the process of creating a will simpler and the cost is relatively lower compared when to other options. Ensuring that everything is done appropriately with respect to the laws that govern wills can help you avoid incurring extra costs if your will is found to have errors during the validation process. It’s worth noting that your will is considered a public document once it inters the probate process. Your San Diego wills attorney can help you understand the tax benefits and implications of using a will as a way of allocating your assets and property.
What Is the Right Time for One to Have a Will in California?
A will can only be implemented following the person’s death. It’s only through a valid will that you’re allowed to decide on who will get what when you die. A will, however, does not permit the transfer of any property and asset to another party if you’re debilitated but still alive. This document is created to take care of certain assets and property that cannot be distributed during an individual’s lifetime. Setting up a will in California is less expensive when compared to a trust at the beginning, so if you are facing difficulties with funding the process, a will may be a better option.
What is the Meaning of Probate?
In California, probate is basically a legal process that may perhaps be necessary after the demise of a person. In the course of probate, an individual’s estate, including his or her financial and legal affairs, are handled in accordance with the person’s wishes or California probate law.
Normally, probate proceedings occur in the Superior Court in the home county of the departed person. Some of the more complex probate proceedings may take place for a period of 6 months, while others may require several years. During the creation of a will, the person initiating it will name an executor of the will. This is the person accountable for making sure that all terms of the will are adhered to. The person named is required to file a petition with the county’s Superior Court for him or her to be appointed as the executor.
Following an official appointment, an executor will come up with a detailed list describing all the parts of the estate comprising property, debts, and assets. Moreover, the executor has the duty to ensure that all bills are paid, taxes filed, and all assets are distributed. After these are issues are successfully settled, a separate petition must be filed with the same court requesting for the distribution of the estate to the heirs named in the will. Once this prayer is granted, the distribution of the estate can take place and this also marks the end of probate.
Is Probate Compulsory in California?
Probate is a necessity in California, but not mandatory. In some situations, the process of probate is forgone when the person dies. This may be as a result of different circumstances that prove probate to be burdensome, but some families may prefer to take legal shortcuts and agree on the distribution of assets. Instances when probate can be avoided:
- Property under a living trust doesn’t have to go through probate. This is because it remains to be the property of the trust and its successor and not the deceased individual. This also applies to all revocable living trusts
- If the individual died while sharing an estate with another party or the owned assets in joint tenancy with another party, it may not be necessary to go through the probate process because the other person is already the owner of the property
- A Domestic Partner Property Petition or Spousal Property Petition may be filed in court to simplify the process in a situation where a legitimately registered domestic partner or spouse is to inherit the property
- Small sized estates may qualify for simplified court procedures
California law provides legal shortcuts that allow individuals to avoid probate with the help of a probate attorney.
What Happens During a Probate Process and What Are Some of the Possible Issues That May Arise During Probate?
For probate to begin, the process must be initiated by an executor as stated in the will. If the will does not indicate any designated executor, one family member may apply to be appointed as an administrator, who serves the same role as an executor. If the applicant does not face any objection, the court will then grant his or her prayer. Nonetheless, an objection to the application of a probate administrator may extend the entire probate process.
Upon appointment, an executor or administrator will take about 6 to 12 months on his or her obligations. The first step involves filing the will and a form known as a Petition for Probate. This should be filed with the local court where the deceased lived. Usually, the fee required to file a petition of this kind in California is approximately $400. This is then followed by authentication of the will which in most cases is achieved by having a witness sign a declaration for the court.
Another section of the probate that might cause problems is the contestation of the legitimacy of the will. This will not only require an attorney but also prolong the probate proceedings. Once a will has been confirmed, the administrator or the executor has the power to make sure that all the terms of the will are observed, taxes filed, bills are paid, and bank accounts are properly managed. Furthermore, they have the responsibility of ensuring that the property is evaluated and all debts are settled. However, there some action that may need a sanction by the court before the executor can proceed.
When an estate has been upheld, the executor may distribute it to the right persons according to the terms of the will. The absence of a will means that the entire estate will be required to go through probate, and assets will be distributed through the application of California probate law. This can be a complex and time-consuming process and may even work against the deceased person’s wishes.
What Can Cause a Will to Be Contested?
In California, a will may be contest based on the following reasons:
- The will was never signed by a witness
- The person who drafted the will did it out of fear, force or threat
- There was deception involved in the drafting of the will or the signing of the will
- The original drafter was not mentally sound when he/she was creating the will
- There is a more updated version of the will that supersedes the existing copy
Difference Between a Will and Trust
A trust is a tool that allows a property owner to hold title for another person known as a beneficiary or successor. The designated beneficiary can receive property while you are still alive or upon your death. In either case, there will be need for the appointment of a trustee who can be a friend, a family member, an attorney, or yourself. A trust is usually created to do the following:
- Keep financial affairs private by avoiding probate
- Control what happens after the death of the property owner
- Plan for a possible incapacity
One of the main differences between a will and trust is that a will goes into effect after you die, while a trust takes effect once the process is finalized and the trust considered legal. This implies that the court will supervise the administration of the will and ensure that it’s legal and property is distributed according to the wishes of the deceased.
Trust, on the other hand, takes care of assets already transferred to the trust and there is no need for probate. When considering whether you should have a will or trust, a will may be a better option since it’s easier to create and amend. It also addresses several issues that a trust cannot. This, for instance, may involve the issue of child guardianship and estate guardianship.
Why Is It Important to Work with a California Probate Attorney?
Even though the probate process in itself is usually simple, there’s a lot of paperwork involved. Working with a probate attorney is the best course of action you can take in ensuring that all property is filed correctly and on time. An attorney can be of great significance especially in situations where the executor of the will is emotionally attached to the deceased person.
The most overwhelming task of the probate process is preparing and putting together all the relevant information, gaining access to all bank accounts and filing taxes and paying bills. In addition to carrying out their assigned duties, the executor has the role of looking after another person’s paperwork and ensuring that all paperwork is filed according to the law, all while living up to the standards of the other people who knew the deceased person. Handling large estates can be complicated and overwhelming and an attorney can be a great resource in simplifying the whole process.
If you’re handling a large estate, an attorney can be of great importance because the task doubles and the process may be complicated. If you’re an executor in need of legal counsel and guidance, a probate attorney is in a position to provide you with advice and even answers during the process of probate. This can especially be of great significance if you do not understand California probate law.
Probate if often not without negative issues that complicate things farther and cause the process to take a longer time. Such issues include family disagreements, lawsuits arising from taxes, or disputes over the validity of the will. A lawyer understands the law, and since they are not sidelined, they can offer an outside perspective that has no emotional attachment to the situation.
If a will is declared invalid or there is no estate plan in place, an attorney will be extremely helpful given that the distribution of the estate will only be based on California probate law. This can result in disputes since not everyone will be contented with the division and allocation. A lawyer, however, can help protect the rights of the family by ensuring that property is distributed fairly according to what the deceased person wanted.
Contact Us for Assistance
Creating a will and going through the probate process can be confusing if you don’t understand how the system works and how the law should be applied. As such, it’s imperative to retain the services of a California wills and probate attorney in order to ensure that your property is safeguarded and distributed as per your wishes.
At San Diego Family Law Attorney, we can help you draft the estate planning documents and ensure that property ownership rights are smoothly transferred upon your death. If you have any questions and need legal advice, please contact us today at 619-610-7425 for a free, no-obligation consultation with one of our experienced attorneys.
