When a person dies, the assets, property, and debts they leave behind become the responsibility of their surviving loved ones. However, adequate preparation on your part can help alleviate these responsibilities. Sweeney Probate Law, our team strives to help our clients prepare for the end of their lives by creating comprehensive estate plans—legal plans set in place to distribute their assets to their loved ones according to their wishes.

Unfortunately, if you do not make any formal estate plans, your family can expect a lengthy and stressful probate process due to the nature of the laws of intestate succession. When a person dies without an estate plan, their property and assets become “intestate,” and there must be a legal process of assigning new ownership rights and responsibilities to those assets. This process takes place in probate court.

What Is Probate?

Probate is the name for the legal proceedings that carry out statutes of intestate succession. Typically, if a family must endure probate, it is because their deceased loved one did not have an estate plan in place at the time of their death. Probate is notoriously tedious, time consuming, and stressful for everyone involved. The family may disagree with the laws of intestate succession due to their unique family dynamics, and disputes often arise that extend probate proceedings even further.

What Is the Purpose of Probate?

The goal of the probate process is to delegate ownership of and responsibility for a deceased person’s assets and property to their surviving loved ones. The first step in the probate process is to gather all the decedent’s assets. Then, the court dictates repayment of remaining debts held at the time of the decedent’s death and distributes remaining assets to their beneficiaries as defined by the state’s laws of intestate succession.

When Is Probate Required?

There are four common scenarios in which probate is necessary:

• The deceased did not have a will or estate plan in place at the time of their death. The probate process will then aim to settle outstanding debts and distribute the decedent’s property according to the laws of intestate succession.
• The deceased had a will prior to their death, but there are legal issues pertaining to the will that require formal legal review. The will may contain unreasonable, unconscionable, or illegal terms, or a beneficiary may raise concerns about the will’s validity, prompting the probate process.
• The nature of the deceased’s will requires a probate process. The deceased may have a valid and enforceable will, but the terms contained therein may require a formal probate process for the will to have its intended effect.
• The deceased has no beneficiaries as defined by the laws of intestate succession. In this situation, the probate process involves settling the decedent’s debts and distributing their assets according to state law.

Having an estate plan in place is the best way to prevent your family from enduring the probate process. However, it is vital to ensure your will is as comprehensive and enforceable as possible to ensure it has the intended effect.

How Much Does an Estate Have to Be Worth to Go to Probate?

Each state upholds unique laws pertaining to probate and the minimum requirements for probate after a person’s death. In California, the minimum value of an estate requiring probate is $150,000 if the deceased does not have an estate plan, beneficiary designations, or a surviving spouse who would assume control of the deceased’s assets and debts under the laws of intestate succession.

While there is technically a minimum valuation requirement for probate, the reality is that everyone benefits from estate planning. Even if your estate is worth less than $150,000, creating a legally enforceable will can streamline the process of distributing your assets and property after your death, saving your loved ones a tremendous amount of time, money, and stress.

How Long Does the Probate Process Take?

It is difficult to predict how long the probate process will take for each individual estate, though the timeframe often falls between six months and two years. However, the time required can fluctuate based on the complexity of the deceased’s estate and whether any beneficiaries raise disputes. Even if there is a valid and legally enforceable will, a beneficiary of the deceased may raise concerns or contest that the will is unenforceable due to coercion, undue influence, or even fraud.

If any dispute regarding an estate is raised during probate, this will effectively extend probate proceedings to address the dispute. For example, a family member may argue that a beneficiary designated by the laws of intestate succession engaged in behavior that should negate their claim on the estate. The final decision rests in the hands of the judge, but it is easy to see how probate proceedings can generate resentment among family members.

Is Probate Required If There Is a Will?

A legally enforceable will usually negates the need for an extensive probate process. However, if the deceased owned assets and property that are not included in their will, or if any disputes are raised concerning the validity of the will, the estate will need to go through probate proceedings. It will also be necessary to submit a will to probate court to have it legally reviewed and enforced. If there is any need to legally settle any aspect of a deceased individual’s estate that is not covered by their will, further probate proceedings will be necessary.

What Happens If You Don’t Probate a Will?

Ideally, the probate process will only involve review of the decedent’s will before distributing their assets and property accordingly. You must submit a will to the probate court for review before distribution, otherwise you could face criminal prosecution for fraud. Probate is the only legal way to formally transfer ownership rights of a person’s willed property after their death.

What Is So Bad About Probate?

The reason so many people dread the probate process is because it is often expensive, stressful, and time consuming. Surviving loved ones understandably prefer to avoid tedious, public court proceedings whenever possible, and wish to handle the estate as quickly as they can. Unfortunately, family disputes arise all too often, especially when beneficiaries disagree regarding the nature of the deceased’s assets or beneficiary designations. Additionally, probate proceedings unfold in court, so everything said in probate is public record. Most people prefer to avoid the probate process for their surviving families by creating a comprehensive and legally enforceable estate plan.

Avoiding Probate

There are several steps one can take to help their loved ones avoid a stressful and protracted probate case:

• Give away or distribute as many assets as possible before your death. If you have property and assets that you would like to leave behind to specific loved ones, you should consider the possibility of simply giving them those assets and formally transferring ownership before your death. This would completely circumvent the need for any probate proceedings involving those assets. This is one of the most effective methods of trimming down the amount of assets and property your family must handle through probate proceedings.
• Arrange “payable upon death” designations for your accounts. Some assets, like bank accounts and stock portfolios, may afford you the option of arranging payable upon death stipulations. For example, you could assign your bank account to be payable upon death to your spouse, effectively eliminating the need for your bank account to be scrutinized in probate proceedings.
• Establish joint ownership. This is most common among married spouses. If you trust your spouse and want them to control your assets after your death, you can have them sign as a joint owner to any property you want them to inherit from you. This way, when you pass away, any jointly owned property simply transfers to your joint owner.
• Create a comprehensive estate plan. The best way to prevent the need for your loved ones to undergo probate proceedings is to create the most comprehensive estate plan you can. This means creating a valid and legally enforceable will and considering the benefits of a living trust that would effectively eliminate the need for any probate proceedings.

These are just a few examples of potential ways to help your family avoid probate. Everyone has unique needs and financial concerns when it comes to end-of-life planning. An estate planning attorney can be a fantastic resource for anyone making these critical decisions.

Benefits of a Living Trust

One of the most effective legal measures you can set in place to prevent your loved ones from enduring a lengthy probate process is creating a living trust. When you create a living trust, you outline the property and assets you wish to include in the trust and name a trustee. This trustee will assume ownership responsibilities of the contents of the trust, effectively removing all property contained within from your ownership. When paired with a legally enforceable will, a living trust is an effective means of ensuring your property and assets go to your desired beneficiaries without the need for complex probate proceedings.

With a living trust, the trustee will handle the estate once the creator of the trust dies. Since ownership of the deceased’s assets contained in the trust transfer to the trustee, there is no need for a probate process to assign ownership of those assets. The trustee has the responsibility of distributing the contents of the trust according to the beneficiary designations included in the creator’s will.

Types of Trusts

You have two main options when it comes to creating your trust: a revocable, or living, trust or an irrevocable trust. Both offer advantages and drawbacks, so you should understand the differences between the two if you decide to create a trust as part of your estate plan.

A revocable trust allows the trust’s creator (also known as the trustor) to resume ownership of the trust’s contents at any time, effectively “revoking” the trustee’s ownership rights. This allows more flexibility when it comes to customization of the trust. For example, the trustor may wish to add more assets and property to the trust, change beneficiary designations, or add new beneficiaries. The drawback to this type of trust is the fact that it will not shield beneficiaries from estate taxes. Since the contents of a revocable living trust remain the property of the trustor, the contents are subject to estate taxes.

An irrevocable trust, on the other hand, removes all ownership from the trustor once created and assigns ownership to the designated trustee. Once an irrevocable trust is created, it cannot be altered, changed, or voided unless an interested party can prove it was created on fraudulent grounds or the trustor was under undue influence at the time of its creation. In exchange for the loss of ability to change the elements of an irrevocable living trust, the trustor has the peace of mind that comes with knowing their beneficiaries will not face harsh estate tax burdens after their death.

What Else Should My Estate Plan Include?

A comprehensive estate plan is the best way to ensure your family does not face probate proceedings after your death. The two principal elements to include are a trust and a will. The trust ensures ownership rights of your property pass to your preferred representative, and the will provides that representative with clear instructions for disbursing the contents of your trust.

In addition to these two crucial components, your estate plan should also include an Advanced Care Directive and a Durable Power of Attorney. The Advanced Care Directive outlines your preferences for medical treatment should you become severely incapacitated and unable to convey such wishes on your own. For example, if you would prefer to be removed from life support at a specific time, you can include these instructions in your Advanced Care Directive.

The Durable Power of Attorney empowers a representative you choose to make major decisions on your behalf if you become unable to do so. This effectively provides your representative with the power of your signature. They can sign official documents in your name and on your behalf, so it is vital to assign this responsibility to someone you trust.

Do I Need an Attorney to Create an Estate Plan?

It is possible to create your estate plan without an attorney. However, an estate plan you create in this manner may not carry the same legal weight as one drafted with the assistance of an experienced estate planning attorney. You should strive to create your own estate plan using the tools you have available, such as software designed to assist in the estate planning process, and then use this as a working draft to bring to an attorney.

Your estate planning attorney can help you fill in any gaps in the estate plan you have created, provide individualized legal advice to help you get the most out of your estate plan, and offer helpful insights regarding aspects of your estate plan you may have overlooked. Everyone has unique needs, and there is no one-size-fits-all template for creating a comprehensive estate plan. Consulting with an experienced estate planning attorney is the best way to ensure your estate plan performs as intended.

Do I Need an Attorney for Probate?

If your loved one passes away without a will or estate plan, you and your family should expect to face lengthy probate proceedings. It is important to remember that the probate court has a duty to uphold the state’s laws for intestate succession, not to ensure that you get the results you prefer out of the process. You may disagree with some elements of the probate process, and it is possible for anyone with a legal interest in the estate in question to raise disputes throughout probate proceedings.

It is best to have legal counsel supporting you as you begin probate proceedings. Your attorney can help you ensure that every relevant legal document receives appropriate attention. More importantly, the attorney can ensure the laws of intestate succession are faithfully followed.

What to Expect From Your Estate Planning Attorney

If you wish to avoid probate, it is crucial to invest both time and energy into creating your estate plan. Working with an experienced estate planning attorney is the best method to ease this process. In addition, an estate planning attorney can ensure your estate plan accomplishes its intended goals and provides your loved ones with the legal protection and assurance you want them to have.

Your estate planning attorney should help you gather all the documentation you will need to prove your ownership rights over the contents of your estate. They will guide you through the various choices you will need to make regarding beneficiary designations and your available options for customizing your estate plan. You should choose an attorney you can trust to provide your family with the guidance and support they need to overcome the probate process as quickly and painlessly as possible after your death.

If you are ready to discuss estate planning with an experienced attorney, or if a loved one recently died without an estate plan and you anticipate a difficult probate process, the team at Sweeney Probate Law can assist you. Contact us to schedule a consultation with a compassionate and experienced probate attorney who can help you and your loved ones navigate the probate process with confidence. Alternatively, contact us to learn how our team can assist you in creating a legally enforceable and comprehensive estate plan.