Introduction to California Probate - Part 2
As discussed in my last article, depending on the type of property and its value, a Court order and a formal Probate proceeding may be necessary to transfer some assets upon death. Specifically, real property (a house, condo, apartment, and vacant land) valued at or above $50,000, and personal property (jewelry, bank accounts, and securities) valued at or above $150,000 of value require a formal proceeding assuming a Non-Probate Transfer does not apply. If a formal proceeding is needed— curb that knee-jerk reaction. This is not terrible news. The following briefly outlines how to begin a formal probate.
So, Where to Begin?
Search out and consult a Probate or Estate Planning Attorney (and find one that you like because he or she will be guiding you through a 9 to 12-month process). A competent Attorney, well-practiced in Probate procedure, will quickly identify which assets need to be included in the Probate, and will prescribe you with a plan of action to transfer those assets.
NOTE: It can be quite beneficial to enlist a law firm with several areas of practice. For example, when an Estate includes Business Interests a law firm that also practices Business Law will have those resources readily available. Many Estates include rental properties with tenants, and when managing the Landlord-Tenant relationship during the Probate a law firm that handles Landlord-Tenant disputes can deal with those issues effectively and efficiently. Also, when engaging a law firm, it can be very reassuring to know that firm also handles litigation.
When to Begin?
When a friend, family member, or other loved one passes away, it’s important their property is transferred timely. In Probate procedure, there are time sensitive deadlines some of which demand immediate attention. When deadlines are missed, complications arise, and significant advantages can no longer be taken. One bright-line rule has to do with Disclaimers. For numerous reasons it can be advantageous for some to disclaim, or turn-down property, they otherwise would inherit. That disclaimer must be made within 9 months of date of death. Also, the Probate Code includes valuable Claim Statutes, which when properly taken advantage of can preserve the Estate. Take time to properly grieve, but don’t let the administration go stale.
How to Begin?
After the property has been properly analyzed, your Probate Attorney will determine how the Estate will be distributed. There are two general paths for distribution:
1. Testate Succession (Transfer by Will) – If your friend, family member, or other loved one created a valid and properly drafted Will, then that instrument dictates distribution. When a valid and properly drafted Will exists, the instrument, among other things, nominates an Executor. The Executor however, has no authority to transfer assets without Court approval.
Complications can arise when the Executor is no longer living or is incapable of acting as Executor due to indifference, physical, or mental limitations. In such cases, the Will continues to dictate distribution, but an Administrator with Will Annexed is appointed by the Court instead of an Executor. Additional complications can arise when the nominated Executor lives outside of California, making the individual ineligible for appointment as Executor which would also require an Administrator to be appointed.
2. Intestate Succession (Transfer without Will) – If a Will was never created, or the Will was not properly drafted, or does not effectively transfer all property, then the laws of intestacy will control all or some of the distribution. This means the State of California, or more specifically, the Laws of the State of California, determine to whom property will transfer. When these laws are applied many of my clients are surprised to learn that not all property will transfer to a surviving spouse. According to the laws of intestacy, only the community property share passes to the surviving spouse and the separate property is shared among the surviving spouse and the deceased person’s children.
In terms of who will distribute the property, and no Will exists that nominates an Executor, the Court will appoint an Administrator of the Estate. According to California Law, that person must of course be willing to act, but also must be entitled to appointment or nominated by a person who is entitled to appointment.
When someone is willing to act as Administrator, but does not have priority of appointment, and cannot obtain a nomination by someone else who has priority, a Public Administrator will carry-out the distribution.
Initiating the Proceeding
Once its been determined how the Estate will be distributed, your Probate Attorney will file a Petition with the Court. This initiates the Probate. A hearing date is scheduled on the Petition, and your Probate Attorney will appear on your behalf. Assuming the appointment is not challenged, and the Petition has been prepared appropriately, the Court will appoint someone to act as Executor, or Administrator.
Again, California Probate does not have to be terrible— even if a formal Probate Proceeding is necessary. A competent Probate Attorney can guide you through the process to minimize the time and expense involved in transferring property upon death.