Probate

What is Probate?

Probate is a legal process that involves dividing up a deceased person's assets. The process is overseen by the court and often involves lengthy paperwork and a series of court appearances. During the probate process, "an Executor” or "Administrator of the Estate" will have the power to make certain decisions and divide up the assets according to the Decedent's wishes, if there is a Will, or according to California intestacy laws if the Decedent died without a Will. 

If you die without a will, there will be an administrative proceeding to determine how your assets will get distributed. If this is the case, the court will appoint an administrator who will follow the instructions in the state's intestacy statute to distribute the estate.

The entire process involves a considerable amount of paperwork. It is important to work with a probate attorney to ensure assets are properly distributed to Decedent's heirs or beneficiaries.

Is Probate Always Necessary?

No. A probate proceeding is only required if the Decedent's assets exceed the minimum threshold or if Decedent's estate real property exceed a certain amount. If Decedent's assets do not exceed the minimum threshold, the assets may be transferred with a simple Affidavit.

How Do I Avoid Probate in San Diego?

You can take the following steps to ensure that some or all of your assets go directly to the people you want without probate:

• Establishing a Revocable Or Other Type of Living Trust: The advantage of a living trust is that the property in the trust won't be probated. For a revocable trust, you can be your own trustee and appoint a successor to distribute your assets per the trust agreement terms after your death. You can specify who are going to be the beneficiaries of your assets.

• Joint Property Ownership: If you make your child, spouse, or anyone else a joint owner of your bank accounts, typically, those accounts will pass to the joint account holder upon your death and will not have to go through probate.

• Designate Beneficiaries for Your Retirement Accounts: If you have designated beneficiaries for your retirement accounts, those accounts will not have to go through probate.

Contact a San Diego Probate Attorney Today

Trying to avoid probate? Unsure of what's going to happen if you die without having a will in place? I can help. Schedule your free consultation today.

Probate FAQ

What Happens During the Probate Administration Process?

Probate administration is a legal procedure through which a deceased's estate is managed and distributed. This process involves the following steps:

• Identifying and appointing an executor or administrator: The court appoints an individual, often named in the will or a close relative, to manage the estate affairs.

• Validating the will: The court confirms the deceased's will as authentic and legally binding, ensuring its proper execution.

• Appraising assets: The executor identifies, gathers, and appraises the estate's assets, including property, investments, and personal belongings.

• Notifying creditors and settling debts: The executor informs creditors of the decedent's passing and pays off outstanding debts using estate assets.

• Filing taxes: The executor prepares and submits any necessary tax returns, paying any taxes due from the estate's funds.

• Distributing assets to beneficiaries: Once debts and taxes have been settled, the executor distributes the remaining assets according to the will or California's intestacy laws.

• ‍Closing the estate: The executor provides the court with a final accounting of the estate's administration, and upon approval, the probate process is concluded.

How Do You Know if Probate Is Required?

To determine if the probate process is required for an estate, there are a few factors to consider:

• Were there any assets solely in the decedent's name at the time of their passing? If so, those assets need to go through probate to be distributed to the beneficiaries. Probate is usually required for assets like:

• Bank accounts
• Brokerage accounts
• Real estate
• Vehicles
• Jewelry or other valuables

• Was there a will in place at the time of death? If the decedent had a will, the will should be submitted to the court for probate. The court then reviews and validates the will before the assets are distributed according to the decedent's wishes.

• Were there any beneficiaries designated on accounts or assets? If the decedent named beneficiaries on life insurance policies, retirement plans, or transfer-on-death brokerage accounts, those assets can pass directly to the beneficiaries, avoiding probate.

• ‍Does any family member or beneficiary object to the will or distribution of assets? If there are disputes among family members or questions about the validity of estate planning documents, the probate court can resolve these issues through probate.

How Long Does the Probate Process Take?

The probate process can vary in length, depending on the complexity of the estate. On average, probate takes six to 24 months to complete. Some estates may take significantly longer, especially if disputes must be resolved in court.

What Assets Are Subject to Probate?

Not all of a deceased individual's assets go through the probate process. Only assets owned solely in the decedent's name go through probate. Non-probate assets pass directly to beneficiaries outside of probate.

Should You Hire a San Diego Probate Attorney?

The probate process can be complicated, especially if there are disputes among beneficiaries or challenges to the will. In these situations, hiring a probate attorney is advisable. A San Diego probate attorney can help guide you through the required legal procedures and help resolve any issues.

Designating a probate attorney to act on your behalf can be beneficial. An attorney can handle all correspondence, filings, and representations in court, saving you time and frustration. They also know probate laws and procedures, ensuring all deadlines and requirements are met.