At Sweeney Probate Law, we understand what you are feeling as you learn that you need to probate your recently deceased loved one’s estate. You may be hoping you can settle it yourself, or you might think that not dealing with it will cause it to resolve itself. However, it is essential to move the probate process forward to fulfill your loved one’s wishes and respect their legacy. A California probate attorney can help you accomplish this.

Consequences of Failing to File for Probate

Failing to file a petition for probate can lead to many consequences, ranging from legal to financial complications. It is important to understand these potential repercussions if you choose to delay probate.

Financial and Banking Issues

The administrator is not able to legally access the decedent’s bank accounts to pay off any outstanding debts, putting the estate in limbo for beneficiaries and potential creditors. Without the probate process, creditors have longer periods to file claims against the estate and, therefore, less inheritance for the beneficiaries.

Asset Transfer and Title Issues

The decedent’s assets cannot be legally transferred to the beneficiaries until probate is initiated, and this can leave them tied up.

Civil and Criminal Consequences

Administrators failing to initiate probate proceedings may face liability for any damages incurred by the estate or its beneficiaries as a result of mismanagement or delays. There may also be criminal charges against them if they take possession of estate assets without probate or conceal a will.

Freezing Estate Assets

If an estate is not probated, it may be considered “abandoned.” This can cause assets to be frozen, and it can be complicated to get the assets released. The state may also take ownership of the assets if enough time passes.

Tax Liabilities

Administrators are responsible for settling the decedent’s taxes. If this is ignored, the IRS may put a lien on the estate.

Consequences for the Administrator

Administrators who do not complete their duties can be held liable for any harm done to the estate or the beneficiaries, such as diminishing asset values and additional expenses. Other beneficiaries can have the administrator legally removed from their duties if they are not doing them correctly or on time.

It is not advisable to avoid probate when it is inevitable, and having a probate lawyer supporting you through the process ensures that everything is done quickly and according to the law, with results as successful as possible. An Orange County probate lawyer can walk you through the process and create a plan for what can work effectively for you and your loved ones while respecting the wishes of the decedent.

Smaller Estates Have Simplified Procedures

Estates with a value of $184,500 or less may be eligible for a non-formal probate case, which can streamline the transfer process. The valuation is determined based on the property value on the date of the decedent’s passing and excludes certain types of assets, such as joint tenancy property, out-of-state property, and vehicles.

This simplified process involves the use of an affidavit to transfer personal property, provided that certain conditions are met, such as 40 days having passed since the death and all the beneficiaries being in agreement. It is important to keep in mind that if there is a surviving spouse, the threshold for small estate probate is higher.

Small estate probate offers a more streamlined and expedited asset transfer compared to the formal probate process, which can be beneficial for estates with relatively modest values.

FAQs

Q: What Happens If a Will Is Not Probated in California?

A: Probate is important, as it settles a decedent’s estate by distributing assets and settling debt. If probate is not filed, their assets may not be distributed, there may be legal issues from creditors, or family disputes may arise. Not filing for probate within one year of the decedent’s death may cause late fees and penalties, which are taken from the estate’s beneficiaries.

Q: Can You Settle an Estate Without Probate in California?

A: Yes, there are situations where probate may not be required. This is done through pre-planning by the decedent, such as by setting up: 

• A revocable living trust
• Joint tenancy with right of survivorship
• Payable-on-death designations (POD)
• Transfer-on-death deeds (TOD)

If they have a spouse, they can claim spousal property. Probate can also be avoided if the total estate is valued at $184,500 or less.

Q: What Is a Small Estate Probate?

A: In California, a small estate probate refers to a simplified probate process designed for estates with a total gross value of the estate being $184,500 or less. If there is a surviving spouse who is the sole inheritor, the threshold is increased. This process allows for a more efficient and expedited transfer of assets to the heirs or beneficiaries, without the need for a full probate proceeding.

Q: Is There a Time Limit to Initiate the Probate Process in California?

A: California law has no strict statutory time limit for initiating the probate process, but it is recommended to do so promptly, as there may be consequences for waiting. There may be legal issues from creditors. Beneficiaries may be eager to receive their inheritances, which may cause family disputes. There may also be late fees and penalties for not filing within a year.

Waiting to settle a decedent’s estate may also cause issues with their assets, such as lack of property maintenance, deterioration of personal property, and investments not being managed.

Q: Is Legal Assistance Necessary If a Will Is Not Probated Quickly?

A: It is advisable to seek legal assistance if a will is not probated promptly, especially if there are concerns or complications, such as creditor claims and difficulties resolving debts, issues with property titles, and other legal challenges. It is important to initiate probate in a timely manner to avoid these extra challenges.

There’s No Need to Fear Probate With the Right Attorney

Realizing that you will have to probate an estate is daunting, especially if you have little understanding of what the process will be like. It can be easy to just want to ignore the problem. At Sweeney Probate Law, we understand the feelings you are going through and are here to alleviate your probate stress. Contact us today so we can discuss your case in more detail.