EXPLAINING THE PROBATE PROCESS, by Keith J. Moten
The Probate process achieves four key objectives after a person passes away: 1.) “proving the will”, or determining whether a decedent’s will complies with the statutory formalities for making a will in California; 2.) gathering or “marshalling” assets of the decedent’ 3.) paying off any and all debts of the estate; and 4.) distributing assets to the heirs at law or beneficiaries of the estate
PROVING THE WILL
If there is a will, the Court needs to ensure that the will was done with the statutory requirements as set forth in the California Probate Code. At this stage, there can sometimes be conflicts over whether the will is genuine, whether the testator (person who signed the will or created the will) had capacity to make a will, or whether the will was obtained by improper means (i.e., fraud or undue influence).
If there is no will, then the decedent’s estate is descended via the laws of intestacy, or essentially, to the decedent’s next of kin, as set forth by statute. However, depending on the degree of relationship to the decedent, there may be conflicts over who is to be the administrator of the decedent’s estate. Sometimes these matters can and are litigated until an agreement is reached, or the Court has made a decision in one way or the other.
MARSHALLING THE DECEDENT’S ASSETS
Once the administrator or executor is appointed, the next step is to marshall assets of the decedent. This usually involves collecting information about money held in bank accounts, securities, annuities, and of course, real estate. These assets must be appraised to determine their value as of the date of death of the decedent.
PAYING OFF DEBTS OF THE ESTATE
Once a probate is filed, and letters of administration are issued, creditors have four months to file their claims against the estate. If filed, these claims are negotiable, but must be paid in order to close out the estate. Often, estates have little to no liquid cash to pay these debts, and must sell estate property, real or otherwise, to pay off the debt.
DISTRIBUTION OF ASSETS
Usually, estates have multiple beneficiaries or heirs at law. And, usually the heirs don’t all agree to have the real property distributed to all of them as joint co-owners. Cash truly is king. To accommodate these sometimes-conflicting interests, heirs often buy each other’s interests out of the property, or have the estate real property sold, and the proceeds divided proportionately. In the case of cash or securities, the cash Is divided and distributed outright, or the securities can be sold and/or distributed outright.
Of course, the process in theory is simple. But, as with any legal matter, a host of problems can arise throughout the probate process that can complicate and slow matters: issues involving blended families, divorce, illegitimate children, upside-down values of real estate, deep-seeded sibling rivalries, and out-of state assets are just a few of the problems that can derail the progress of a probate. However, with a competent, active, and persistent Los Angeles probate attorney, you can navigate the troubled waters of probate safely. Call or contact us for help with your probate needs.