What is Probate?
Probate is a legal process through which the court sees that the deceased's debts are paid, at death, and that assets are distributed according to the deceased's will. If no will exists assets will be distributed according to state law.
Probate is the way the State ensures assets will pass to the appropriate person and that all debts against the deceased are paid. Property interests (real estate) in California are very important and the State has a very strong interest in ensuring it is passed according to the desire of the owner.
How do I inherit my Parents'/Grandparents' Estate?
In order to pass assets from one person to their heirs, the Estate must be Probated. This means that the court must become involved and must determine 1) who the heirs are 2) whether there is a valid will 3) who the creditors are and what debts are owed. In addition, the law states that notice to public (via the newspaper) must be published in the newspaper.
This is the process each estate must go through if there is no Living Trust. If you have recently lost a loved one, then Probate may be the only way for you to inherit their Estate.
They had a small estate, do I need Probate?
The State of California has set minimum dollar threasholds for Estates that may avoid Probate. Estates worth more than $100,000 in total assets or Estates with assets more than $20,000 in Real Estate assets will be subject to Probate. That means if the deceased owned a home in California worth more than $20,000, their assets must pass through Probate.
They had a Joint Tenancy does that avoid Probate?
Joint Tenancy or Joint Tenancy with Right of Survivorship, are both titling methods which delay probate. When the first Tenant passes away, their interest ceases to exist and the remaining Tenant takes ownership. However, upon the passing of the surviving Tenant the estate will then be Probated.
Sometimes, people take it upon themselves to add an additional person on title, upon the death of the first Tenant or Spouse (usually the case). This action can cause many problems. The gift of an asset to another may trigger a gift tax and failure to notify the IRS about the gift may give rise to other tax issues. The additional Tenant may also bring un-needed liability to the property. Consult an Estate Planning Attorney who specializes in this area of the law to find out how to avoid these issues.
They have Tenancy in Common or Community Property does that avoid probate?
Both the TIC and CP designations do not avoid probate. They both trigger probate upon the death of the first Tenant or Spouse. In some cases, we can use a summary Probate proceeding to get property re-titled.
How do I begin my Probate?
The Probate process begins with a call to the Law Office of Matthew C. Yu.