Probate is the field of law that determines how an estate must be divided. Each state has its own laws and statutes requirements to determine if and how an estate must be probated. The probate court will supervise the process when a deceased person (a decedent) leaves assets to distribute, such as bank accounts, real estate, and financial investments with or without a will. The probate court provides the final ruling on the division and distribution of assets to beneficiaries.

In many cases, the decedent has established documentation, which contains instructions on how their assets should be distributed after death and designates in such documents who oversees implementing this process.  This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries. Where a decedent fails to establish such documents while alive, State law and the probate courts will dictate how the estate is administered and to whom assets get distributed to.

Probate With a Will 

A deceased person with a Will is known as a testator and he or she is deemed to have died “testate.” When a testator dies, the person designated as the executor under the Will is responsible for initiating the probate process. The probate process for a testate estate includes distributing the decedent’s assets according to the Will.

Probate Without a Will 

When a person dies without a Will, a person is to have died intestate. An intestate estate can also occur when a written Will is presented to the probate court and the probate court has been deemed the Will to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to State law. State law does not allow for a blood-line heir to be disinherited.  That can only be done using a Will.

What Is The Probate Process?

A probate court proceeding begins with the appointment of an administrator or executor to oversee the estate of the deceased person. Such personal is typically called the “personal representative.”  The personal representative receives all legal claims against the estate and paying off the outstanding debts. Also, the personal representative is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. Then the probate court will assess what assets need to be distributed among the legal heirs and how to distribute them.

The probate process can take a long time to finalize and can become costly, therefore it is important to know whether a probate is required following the death of an individual. The more complex or contested the estate is the more time it will take to settle and distribute the assets. Furthermore, the proceedings of probate court are publicly recorded so avoiding probate would ensure that all settlements are done privately.

Note though that having a Will does not mean that probate is avoided, it just serves a roadmap for the probate court. There are several options involved with end of life planning to help avoid the probate process.

How To Get Money Due To You?

When a person owes you money and dies funds can still be potentially be recovered from the decedent if proper procedure is filed. If someone dies and they owe you money, you are a creditor of their estate. Under the California Probate Code, a creditor has one year to bring a file a claim in probate court against the estate or they are barred by law from enforcing that debt. If the funds are not secured by real property, such a mortgage, a creditor has a limited amount of time to file or they are barred by law from collecting their debt from the decedent’s estate.

• Filing a Statement of Claim – Any creditor of the deceased person may prepare a written “Statement of Claim” to try to recover from the decedent’s estate.  The Statement of Claim is then filed in the probate case of the decedent. The Statement of Claim should include the following information: the basis of the claim; the name and address of the Claimant (and their attorney); the amount of the claim; when the amount is due or will become due; if the debt is contingent or unliquidated; and if the debt is/is not secured. When a Statement of Claim is timely filed in a probate case, the person administering the probate case will have to resolve the claim by either: paying the claim, objecting to the claim, paying a portion of the claim, or not paying any of the claim if the estate has insufficient assets to pay the claim.
• Filing a Caveat – If there is no probate case for the decedent, a Statement of Claim cannot be filed as there is no one in place to resolve the decedent’s debts.  However, a document called “Caveat” can be filed with the probate court in the county where the decedent resided at the time of their death.  The Caveat is a written notice to the court so that the person who filed the Caveat, known as the “Caveator”, is notified if any probate case is filed in the decedent’s name. When a creditor files a Caveat, the Clerk of Court is required to notify the creditor if a probate case is started and to provide the creditor with contact information for the person who initiated the probate proceedings.  Once creditor is notified of a probate case being opened the Statement of Claim would then be prepared and filed in the probate case by the Caveator.

What Should You Do?

Consider reaching out to a Trusts and Estates and/or Probate Attorney such as those at the Law Offices Of Jeffrey B. Kahn, P.C. We are always thinking of ways that our clients can save on taxes, trusts and estates planning, and probate matters. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), Los Angeles and elsewhere in California are highly skilled in handling tax and probate matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income. Also, if you are involved in cannabis, check out what our cannabis tax attorney can do for you. Additionally, if you are involved in cryptocurrency, check out what a bitcoin tax attorney can do for you.