What Is The Purpose of Probate In California? 

PROBATE ATTORNEY:  Getting a probate attorney is normally the first step.   (General information) CLICK HERE

PURPOSE OF PROBATE: Learn the purpose of probate and what is involved. Click Here

WHAT ASSETS ARE PROBATED: Find out what assets are not probated too. Click Here

Most people have heard of the word  "probate" but very few really understand what it means. Over the years Probate has received a lot of bad comments.  Not all estates need a Living Trust.  When the estate is over $100,000 gross value you should think about having a living trust prepared for you.  In some cases even a small estate should have a living trust. One example if there is a special needs child or a special needs adult who will need to be taken care of from the estate's proceeds.  Some people also just  want to avoid the hassle, time, and expense of the probate process. 

Probate is not designed by attorneys but by the state in which you live in.  Most attorneys would rather draft documents that avoid probate whenever possible.  The probate process can be avoided and should be avoided if your estate is over $100,000.00,  but most people do not take the time or effort to understand what this process is and how it can be avoided.

Probate is a legal process whereby the Superior Court or Probate Court validates the deceased person's will or determines that he or she died without a will.   When you don't have a will then the laws of  intestacy become into play.    What probate is all about is the transferring of property, real and personal to someone else.   The probate process is to prove up that you are entitled to the to property over someone else or the State of California.  Most of the time this is not that difficult to prove but it is still a lengthy process.
 
When a person dies without having executed (signed) a will, the person is said to have died "intestate." This does not mean the heirs will not receive his or her property but there are special rules that apply to whom gets what.  Laws of intestacy are state laws that specify who will inherit the property (i.e. the decedent's probate estate) of a person who dies without a will. If the estate is of any value you should hire an attorney to help you with the legal paperwork.  In many states, the surviving spouse and children inherit the property of a spouse/parent who has died without a will. But again you do need to consult a probate attorney for legal advice.

After your probate attorney files the necessary paperwork, the court will appoint someone to handle the decedent's assets, determine the values and pay the bills owed at death or to reimburse family members for the cost of the funeral.  That someone is referred to as an executor, executrix, administrator, or administrator depending on the circumstances and the state you live in..

Another purpose of probate laws is to see if anyone was owed money at the time of death so the creditor can come forward and make a claim to receive payment based on a valid claim. There is a fixed statutory period of time for creditors to come forward and demand payment.  If they fail to do so then they probably will not get paid. Not all creditors will put in a claim since it can be costly for them. 

PROBATE TAXES - The probate process is designed to see that taxes are paid. Income taxes and personal income tax returns up to the date of death must be paid out of probate. Also if there is any income such as rentals, IRS, or any other income collected during probate period, it will require the filing of a separate estate income tax return and the payment of tax if any is due. If the person that passed away  owed over $1,500,000 to $3,500,000 (depending on the year of death under the current tax laws) of assets at the date of death a federal estate tax return is required and the tax due must be paid within nine months of the date of death.  The federal laws on estate tax is always subject to change.

Lastly, after all assets of the decedent are collected, assets are sold and taxes and debts are paid, then the executor or administrator must distribute the remaining assets in accordance with the decedent's will or the rules of intestate succession, if the decedent passed  away without a valid will.

If you need a probate attorney in San Diego County or in the El Cajon, Santee, Lakeside, Spring valley, La Mesa, Lemon Grove , Alpine, Santee, Rancho San Diego, Chula Vista,  or in the East County of of San Diego please contact my office to discuss your probate needs.