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Did you know that if you plan carefully, your estate might not have to go through the process of probate? Probate can drag on for years, and can easily cost your family thousands of dollars, money that would otherwise have gone to them.
So what is probate? Probate in a nutshell is a legal proceeding that is used to wind up a person’s legal and financial affairs after death. In California, probate proceedings are conducted in the Superior Court for the county in which the decedent lived, and can take at least eight months and sometimes as long as several years.
During the probate proceedings, the person who is nominated in the will as executor files a petition with the Superior Court asking that he or she be appointed as executor. If there is no will, the Probate Code provides a list of persons who have priority to petition to become administrator.
The will also is filed with the petition, and notices are sent to the heirs and/or relatives to let them know when the hearing will be held. If there are objections to the petition, or if the validity of the will is contested, the hearing will be used to resolve any problems that have arisen. In some cases this may mean that the validity of the will is not upheld, or that some other person other than the original petitioner is chosen to administer the estate. In most cases, however, there is no objection and the petition is granted.
The executor then makes an inventory of the estate’s assets, locates creditors, pays bills, files tax returns, and manages the estate assets. When all of the duties of the executor are completed, another petition is filed with the court asking that the estate be distributed to the heirs. If this petition is granted, the estate administration is completed by distributing the assets to the heirs and filing final tax returns.
The reason people want to avoid this process is the fees, cost and delays associated with the probate process. The law sets the maximum statutory fees that attorneys can charge for a probate. Higher fees can be ordered by a court for more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000.
Fortunately, there are several things that you can do, besides forming a living trust. The most common method deals with money held in financial institutions. If you have money in a financial institution, you can set it up as “a to pay on death account.” This allows you to designate a person who the money in your account will go to when you die.
Pay-on-death accounts offer one of the easiest ways to keep money out of probate. All you need to do is properly notify your financial institution of whom you want to inherit the money in the account. The bank and the beneficiary you name will do the rest, bypassing probate court entirely.
As long as you are alive, the person you named to inherit the money in a pay on death account has no rights to it. If you need the money, or just change your mind about leaving it to the beneficiary you named, you can spend the money, name a different beneficiary, or close the account.
Although death may be inevitable, probate does not have to be. With careful planning your property will bypass lengthy and expensive probate proceedings and go directly to the people you have designated, quickly and easily and without the hassle of expensive attorney fees.
The purpose of this column is to provide general information on the law, which is subject to change. It is not legal advice. Consult a lawyer if you have a specific legal problem.
Published: August 04, 2011 – Volume 10 – Issue 16