Estate Planning and Probate

Estate planning is an individual determining who will receive the benefit of their property after death.  There are many tools available to implement an estate plan, some involve use of the court system while others avoid court.

Probate is a process using the court to implement the desires contained in an individual's last will and testament. In addition to probate there are other simplified court procedures to transfer property interests upon death, these include small estates, under $100,000, and spousal property petition.

Probate and these alternatives are also used when the individual dies without a will, intestate.

Holding title in joint tenancy is the most common tool to avoid probate.  This is because by operation of law upon the death of a joint tenant the remaining joint tenant(s) receive that persons interest in the property.  This result cannot be affected by either the court or the individual's last will and testament.

In addition to joint tenancy, some other methods to avoid probate are pay on death (POD) clauses for financial accounts and the increasingly popular Living Trust.

Before commencing development of an estate plan, one should understand what probate is, including the procedure, time frames and costs.

Probate is in essence the gathering of decedent's assets (creating a probate estate), payment of decedent's debts and distributing the remaining assets to decedent's heirs either identified in the will (testate) or by statute (intestate).

The detailed probate procedure is :

1.  File Petition for Probate with the Superior Court in the county of residence or where real property owned by decedent is located.

2.  Publish Notice of Petition in a newspaper of general circulation in that county.

3.  Obtain Order for Probate at a court hearing, assuming no objection is raised.

4.  If required, obtain and file fiduciary bond with the court.

5.  Obtain Letters Testamentary (testate) or Administration (intestate or administrator not individual named in will).

6.  Mail notice of death to California Department of Health Services (MediCal recovery).

7.  Mail Creditor's Notice to all known and potential creditors of the decedent which can be ascertained with reasonable effort.

8.  Obtain federal tax identification number (the probate estate is a tax paying entity).

9.  Accept or reject Creditor's Claims within 30 days of receipt.

10.  Locate and inventory decedent's assets.

11.  Obtain an appraisal of those assets from a probate referee.

12.  File the appraisal with the court.

13.  Liquidate sufficient assets to pay the costs of probate and the allowed creditors' claims, which may be an involved process with several court appearances depending on the type of property.

14.  Pay the allowed creditor claims.

15.  Obtain MediCal clearance from California Department of Social Services.

16.  Prepare and file an Final Accounting And Proposed Distribution.  The Final Accounting would be identification of assets at time of death, details of sales of those assets and payments to creditors leaving the remaining assets.  The Proposed Distribution would included proposed fees and costs of administration and a proposed final distribution of the remaining assets.

17.  Obtain Order Approving Final Accounting and Distribution during court hearing, assuming no objection.

18.  Distribute assets, withholding funds as a reserve for income taxes.

19.  Prepare and file the appropriate tax returns along with tax payment.

20.  Distribute any remaining funds in the reserve.

21.  Obtain final discharge from court.

The final discharge terminates the probate procedure.

The above description is intended to provide an overview of the probate process.  There may be many additional steps depending upon the nature and extent of property to be sold and divided as well as if property is owned in another state.

A probate may extend over several years, particularly if there is real property to be sold.  The shortesSeanda Daileyt length of time for a probate is six months.  This is one month for publication of Notice of Probate, four months for creditors claims and one month to prepare and give notice of hearing on final accounting.

This article is intended to provide an insight into the probate process.  The next article will discuss the costs of probate and the other two alternatives using the courts to distribute property, small estate and spousal property petition. 

Future articles will cover the ramifications of how title is held to property, living trusts and other estate planning issues.

Kirk Livermont is an attorney with a private practice located in Independence, California providing comprehensive estate planning services.

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