Gadi Zohar, Esq.Gadi Zohar, Esq.2023-07-21T17:16:42Zhttps://www.gadizohar.com/feed/atom/WordPress/wp-content/uploads/sites/1403853/2020/11/fav-icon-75x75.pngOn Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=500282023-07-18T17:17:13Z2023-07-21T17:16:42Zwill not require probating.
Automatic pass-through assets
Any assets within an estate that automatically transfer to another party when the owner dies do not have to go through probate. This might include items in a trust and beneficiary accounts. The deceased already set up the transfer prior to death, so there is nothing for the court to do in probate with these assets.
Also, if the person had a spouse, state law will automatically transfer certain items to the spouse. There may be no need for the court to step in.
Lower valued estates
If the estate does not have many assets, it may not require formal probate. the law states property valued over $166,250 must go through probate with no exceptions. If it is under that amount, then probate may not be necessary.
Check-in with the court
The best course of action after someone dies is to check in with the probate court to ensure formal probate is not a requirement. The person who has the deceased will should file it with the court. The person who is in charge of the estate will then need to file a probate petition. This will begin the process and allow the court to determine if there are probatable assets.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=500262023-07-04T05:07:55Z2023-07-08T05:06:29ZWhat is probate and when is it necessary?
After a person dies, probate is the legal procedure for the court to manage their assets, pay off any remaining debts and distribute the rest of the property to the heirs. In California, probate becomes necessary when a person passes away and leaves behind property in their name that does not pass to someone else by law.
For example, if the deceased person owned a home solely in their name, probate would likely be necessary to transfer the property to the rightful heir.
What assets are subject to probate?
Generally, assets that the deceased person owned in their name alone are subject to probate. This includes personal property, real estate, bank accounts and investments. Property held in joint tenancy, assets with designated beneficiaries such as life insurance policies and assets held in a living trust are not subject to probate.
How long does probate take in California?
The length of the probate process in California varies greatly. Depending on the complexity of the estate, the efficiency of the court and whether any disputes arise, probate can take anywhere from several months to several years.
On average, it can take about a year to a year and a half for many estates to go through probate.
Who handles probate?
The executor of the will is typically responsible for handling probate. If there is no will or the named executor is not willing or able to serve, the court will appoint an administrator. This person will manage the estate, pay debts, file taxes and distribute the remaining property as the law requires.
The probate process in California may seem daunting. However, understanding what probate is and how it works can help you manage this process with less stress and confusion.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497392023-07-03T18:48:06Z2023-07-05T19:44:14ZUnderstanding probate
Probate is the legal process that happens after someone dies. This process includes identifying the property of the deceased person, paying any outstanding debts or taxes, notifying government agencies of the death, possibly selling assets, and distributing the remaining property according to the terms of the will. If no will exists, probate laws of California guide the distribution of assets.
Typically, the process starts with the executor named in the deceased person's will presenting the will for probate in court. If the will does not name an executor, or if no will exists, the court appoints an administrator.
Organization and proactive action are key
There is a lot to keep track of when you are in charge of a probate. It is important to keep organized files of the estate's paperwork such as bills, account information, debts, your court papers, and more. The work itself can be a lot, but a little organization can go a long way for reducing stress.
One common aspect of an estate administration that tends to slow the process down is taxes. The executor/administrator needs to make sure that the decedent has paid all of her/his taxes that were owed prior to death. Failure to follow through on this obligation can lead to the administrator or executor being personally liable for the decedent's tax obligations. Because tax issues naturally involve the IRS and FTB, the process can take some time. Especially when one discovers that a decedent failed to file tax returns in the last years of life (which often happens due to age and poor health). Tackling personal income tax issues early can help reduce stress when you are wanting to end the process and distribute the estate's funds.
Reducing stress with legal help -- and the lawyer is paid entirely by the estate, not you!
The complications of the California probate process can sometimes confound even experienced probate attorneys. While you are not required to hire an attorney, the truth is that the complicated probate process can be made tremendously easier with the help of legal counsel.
Obtaining legal help with a probate should not cost the administrator one cent. Some attorneys may require an initial deposit in order to cover out of pocket costs, such as court filing fees, before you have control of the estate's cash. But even in those cases, you will be entitled to reimbursement from the estate before any money is distributed to the beneficiaries. Many people learn the hard way that they need the help of an attorney, only after trying the process on their own and experiencing many setbacks. Finding an experienced probate lawyer from the start is key to reducing the stressful probate process.
While the probate process may seem daunting and stress-inducing at first, a good understanding, organized approach, and qualified legal help can make it far more manageable.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497312023-06-28T09:58:01Z2023-06-15T19:39:01ZIdentify and notify creditors
The first step in ensuring you pay all debts during probate is to identify and notify creditors of the deceased person's passing. As the executor or personal representative, it is your responsibility to notify creditors and provide them with the necessary information, such as the date of death and your contact details. This allows creditors to come forward and make a claim against the estate for the debts owed to them. In California there is a particular form and strict time limits for such notifications. Creditors are also notified in a California probate in the form of the newspaper notice a petitioner is required to file before starting a probate. Many large financial institutions have staff who review these newspaper notices in order to file creditors' claims.
Review and verify claims
Once you have notified the creditors, it is crucial to review and verify the legitimacy of their claims. You may want to request supporting documentation from creditors, such as invoices, contracts or statements, to verify the amount owed. This is especially advisable with credit card debt, because sometimes unscrupulous people will use a decedent's credit card after death. If that happens, you, as personal representative, can automatically refuse to pay any charges that occurred after death (except that sometimes automated charges may still be legitimate). Also, creditors must follow a specific procedure in order to claim a debt owed and you, as the personal representative, may reject any claim that is not properly served and filed.
Negotiate and settle debts
In some cases, you may need to negotiate with creditors to reach a settlement or repayment agreement. Work with creditors to negotiate favorable terms, such as reduced amounts or extended payment plans, especially if the estate lacks sufficient funds to cover all debts in full.
Liquidate assets if needed
If the estate does not have enough liquid funds to cover all outstanding debts, you may need to liquidate certain assets. Identify assets to sell to pay off the debts. This may involve selling real estate, vehicles or other valuable possessions. Another option, if the estate has real property, is to obtain a loan for the estate secured by real property (i.e., a mortgage).
Finalize the debt payment process
Obtain releases or acknowledgments from the creditors stating that you satisfied the debts. These documents serve as proof that the estate has fulfilled its obligations and the creditors no longer have any outstanding claims against the estate.
As the executor or personal representative, you can pay the estate's debts properly and facilitate a smooth distribution of assets to beneficiaries.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497292023-06-28T09:56:17Z2023-05-25T10:20:16ZProbate and intestate succession
In California, an estate typically enters probate when a person dies without a trust (NOTE: If a person has a will, but no trust, then probate is still necessary. Wills to not avoid probate.). Without a will, California's intestate succession laws govern the distribution of these assets. California designed its intestate succession laws to distribute the assets of the deceased in a manner that, generically, most people would likely prefer. These laws identify and allocate the assets to the closest relatives of the deceased, based on particular priorities. For instance, the surviving spouse and children generally take top priority, with parents of the deceased next in line, if the deceased had no surviving spouse or children/grandchildren.
The function of the probate court
The probate court takes on a crucial role in managing an intestate estate. The court appoints an administrator, also known as a personal representative, to handle the affairs of the estate. The duties of the administrator include gathering the assets of the deceased, settling debts and taxes and distributing the remaining assets following the state's intestate succession laws.
Creating a trust serves as the most effective way to avoid the uncertainties of intestate succession and also to avoid court intervention. By clearly stating how to distribute assets, a will or trust can ensure peace of mind and potentially prevent conflicts among surviving family members; the difference being that a properly funded trust can also avoid the need for probate court intervention. However, if a loved one dies without a will, it becomes crucial to understand California's probate and intestate succession laws.
Proper succession can become complicated
The rules of intestate succession are not always straightforward. For example, if the decedent had a spouse who predeceased within a certain time period, the people entitled to the portion of the estate that would have belonged to the predeceased spouse could be certain more distant relatives of the predeceased spouse. This can become especially complex in cases where the couple had no children and lived a long life. You can end up in a situation where dozens of people with distant relations (like "first cousin once removed") are entitled to various percentages of the estate. A personal representative not only has to follow the rules of intestate succession, but also make a bona fide effort to look for all heirs who are entitled to estate assets. In many cases, this involved hiring a private investigator to find the people.
Because the personal representative has a responsibility to find heirs and because these heirs have a right to notice of the probate and of the property to which they are entitled, it is crucial to get experienced professional help in ensuring that an intestate estate is properly administered.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497262023-06-28T09:56:47Z2023-05-17T15:24:10ZResponsibilities to the estate and decedent
As Executor.org states, executors have numerous duties and responsibilities during the course of their work.
First, they have to maintain the estate and carry out the wishes of the decedent to the best of their ability. In the case of the latter, this can include proper handling of their body, making funeral arrangements and so on.
They must also file the decedent's final taxes, using assets from the estate to make this payment.
Regarding the estate, an executor needs to decide what bills to end and which to continue paying. They must then continue paying said bills, such as electricity to any properties owned by the decedent.
Responsibilities to creditors
Of course, if the decedent had any outstanding debts before their death, then it is up to the executor to repay them.
As with taxes, the executor will use assets from the estate in order to repay these debts. It is best to work with the estate attorney and any financial advisors during this portion of probate.
Responsibilities to beneficiaries
Finally, after the process of probate comes to completion, an executor's last task is to ensure that the beneficiaries get their portion of assets from the decedent's estate plan in accordance with their will.
The executor will often carry out numerous other tasks in between, making it crucial for a potential executor to understand well what they get into before they agree.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497242023-06-28T09:57:20Z2023-05-01T09:12:54Zthe best interests of someone else. As an executor, your fiduciary duty is to the deceased person and his or her estate. Fulfilling your fiduciary obligations requires care and diligence.
Your fiduciary obligations
What does it mean to act in the best interests of the deceased person and his or her estate? When it comes to being an executor, you must perform each essential task honestly, fairly and impartially. This means you should not seek to benefit yourself or anyone else to the detriment of the deceased individual's estate.
Your ability to seek help
Being an executor requires accomplishing a variety of tasks within strict time frames. To comply with your fiduciary obligations, though, you do not necessarily have to do everything by yourself. Indeed, it is not uncommon for executors to work with attorneys, accountants, appraisers, brokers and other professionals. Generally, the deceased person's estate pays for the services of these individuals.
Your legal exposure
Because you have a fiduciary duty as an executor, you are vulnerable to accusations that you have breached your fiduciary obligations. Ultimately, if someone is successful with such an allegation, you might be personally liable for any damages the breach causes.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497222023-06-28T09:57:34Z2023-04-11T13:49:33Z1. Establish good communication from the start
One of your first responsibilities as executor will be notifying all beneficiaries that the deceased has left them in their will. Creating an email list can be a helpful way to communicate information efficiently while also creating a record that everyone can access when needed. However, before relying on email communication, make sure to follow up by phone to make sure beneficiaries are receiving important messages.
2. Maintain meticulous estate records
Before you can distribute assets, you must make a full inventory and appraisal of estate assets, pay outstanding estate debts and complete final tax obligations. It can be helpful to be transparent about these details with beneficiaries, especially if paying estate debts ends up reducing the amount they might receive.
3. Keep interested parties in the loop
When taking major steps, like selling a home or other valuable asset, make sure to let beneficiaries know your process and keep them informed about the progress of the sale.
As executor, you have an important fiduciary duty to follow the wishes of the deceased and to act in the best interests of the beneficiaries. It is important to keep in mind that you may be personally liable for mistakes or oversights during the probate process.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497192023-06-28T09:57:48Z2023-03-30T17:12:48Zrun into trouble if heirs or beneficiaries raise concerns about their handling of the estate. These can range from emotionally charged complaints about who receives what to arguments about the legality of the will itself.
When family members do not receive what they expect
Beneficiaries may have misunderstandings about what the deceased intended. They may disagree with the terms of the will or, if there is no will, they may disagree with how the law distributes assets among surviving heirs. Sometimes, beneficiaries believe they are owed more because, for example, they were helping the decedent at the time of death. Often these issues can be resolved informally with information and, most importantly, respect for the person feeling aggrieved. But unfortunately, sometimes these types of disputes lead to litigation.
When beneficiaries agree to change estate distributions
Life can change fast, and the deceased may not have had a chance to update his or her will before their death. If all beneficiaries and heirs agree, the executor may be able to pursue a different estate distribution through the court. Most courts will honor an agreement to alternative distribution from the will or from the rules of intestacy, so long as all parties are in agreement.
When beneficiaries have larger legal concerns
Parentage disputes, accusations of undue influence or forged will and the need to evict persons from the deceased’s home are all examples of larger legal problems an executor may need to handle.
Executors who face conflicts are in a difficult position because on the one hand they must defend the estate and on the other hand, they must treat all beneficiaries equitably -- even the beneficiaries who may not be so easy to deal with. In most cases, only an experienced probate attorney can help executors navigate these treacherous waters.]]>On Behalf of Gadi Zohar, Esq.https://www.gadizohar.com/?p=497162023-06-28T09:59:35Z2023-03-21T17:07:21ZCalifornia law.
Learn some of the responsibilities of a personal representative during probate.
Get a handle on assets and debts
You may already have access to financial accounts and bills, depending on who died. One of your duties during probate is to tabulate all tangible and intangible assets, property and debt. The court will expect you to keep an accurate count of the value of the estate.
You must also pay off debts to creditors who present valid bills or contracts. If you need clarification about the validity of a creditor's claim, the court can step in and decide. Before probate can continue, all legal debts need payment.
Notify heirs
The will should have a list of who receives what. One of your tasks is to notify everyone listed in the will so they can come forward and claim whatever property the decedent left them. This includes personal property, such as jewelry and furniture, as well as cash or real estate.
File a tax return
Both the state and federal governments require the estate to file tax returns and pay tax on the gross value. Before probate can close, the estate balance needs to fall to zero, including the payment of taxes.
As a personal representative, you have a lot on your plate. With this in mind, consider asking for assistance so you do not get caught up in a more complicated situation.]]>