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Is probate really necessary?

Is probate necessary after a loved one dies? In reality, it depends. The probate process can take more than one year to complete, and may leave you and your loved ones in prolonged grief until the matter is resolved.

What is Probate?

Probate refers to the process of "proving" a will. In the process, the courts determine whether a will is valid or invalid. The decedent's debts are paid and their financial affairs are put in order.

Probate can also handle the distribution of someone's assets if they died without a will. Probate concludes when the will has been deemed valid, and all the individual's liabilities have been settled. At this point, the decedent's remaining assets can be distributed to their heirs.

When is Probate Necessary?

Factors that affect whether or not you need to go through probate include your relation to the person who died (the decedent), the amount of money in the decedent's estate, and the type of property the decedent owned.

If the decedent's estate was worth over $150,000, then you must go through the probate process. To initiate the process, you will need to complete the California Petition for Probate, which has more than one option. You must select whether you are petitioning for "Probate of Will and for Letters Testamentary" or whether you are petitioning for "Letters of Administration." A probate attorney can explain what these terms mean and help you make the right decision.

If the decedent's estate was worth less than $150,000, you may still need to file probate depending on the aforementioned factors.

When is Probate Not Necessary?

Since probate can take a long time and subject you to emotional pain, many families wish to avoid it. Generally speaking, probate can be avoided if:

  • The decedent's estate is worth $150,000 or less and does not include real estate
  • The decedent's estate is worth $150,000, includes real estate, and your attorney files Form DE-310 on your behalf
  • The estate is owned in tenancy or jointly with one or more individuals who is alive (thus, the property passes to these people)
  • The decedent is your spouse or domestic partner, thus you can obtain your share of the property with a simplified form, bypassing probate

Even if you think that you can bypass probate, you should retain an attorney. An attorney can walk you through the appropriate paperwork to prove your probate exemption, file the papers on your behalf, and represent you in court. An attorney can also advocate for your best interest once the papers have been filed and respond quickly to any issues that arise.

After something as emotionally stressful as a death in the family, it can be helpful to know that a probate attorney is handling these matters. We are more than happy to discuss your estate planning and probate questions in detail.

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