Law Offices of Roshni T. Desai
Long-term Planning For Orange County

Demystifying the probate process

In the wake of a loved one’s death, many people find the prospect of probate overwhelming. They may have heard the term, but do not really understand what the process entails.

Probate occurs after a person’s death. During this process, a court sorts through the deceased’s will, settles debts and distributes remaining assets to the beneficiaries. According to California law, estates valued over $150,000 in probate assets are generally required to go through the probate process. What are the main stages of probate?

  1. Validating the will.Before property can be divided, the will in question must be validated. The will can go uncontested, or it may be contested by the beneficiaries. A dissatisfied heir may claim that the deceased person was unlawfully influenced, mentally incapacitated or failed to complete all necessary legal formalities while writing their will. If a person fails to leave a will, California law determines the fate of their assets.
  2. Appointing a representative. Most wills appoint an executor to manage the deceased’s affairs and to ensure that the will is carried out. If the will does not name an executor, the court appoints a personal representative to settle the deceased’s estate.
  3. Collecting assets. Once the will is validated, all probate property is collected. Not all property is considered under probate – probate property must have been solely held by the deceased. Therefore, a family house would not be admitted under probate. Additionally, assets in a revocable living trust or with a payable-on-death beneficiary are also not included.
  4. Pay the deceased’s debts. The court uses probate assets to cover all debts, claims or taxes still owed by the deceased. The executor is in charge of contacting all of the deceased’s creditors and ensuring proper payment.
  5. Distribute property. Lastly, the probate court distributes remaining property to the beneficiaries per the will’s instructions. The court also settles disputes between beneficiaries.

Probate can be a very complex process, especially when an individual holds a number of assets. Executors are under a lot of pressure to carry out this complicated process, and they can be held liable for mistakes. If you go through probate after the death of a loved one, Consider contacting an attorney who can help you navigate the process, and smoothly settle the matter.

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