The most important message we like to communicate about probate court is that it should be avoided at all costs – under most circumstances.
We recently discussed this issue on our weekly radio and web broadcast on KDOW 1220 AM, where it was a pleasure to have the distinguished Mark Morris back in the saddle this week as a co-host.
Probate is a court process that estate planners usually try to avoid, primarily to eliminate the added expenses and time involved.
However, in some cases, it may be best to have a will probated, because the probate court will act as a supervisor to the process, which ensures that all beneficiaries are legitimate and that no conflicts-of-interest arise in the management of the estate.
Other points we discussed include:
- It is advisable to have an attorney present in probate court, but with enough research and knowledge, you can represent yourself. Naturally, the more practice you have dealing with these matters, the better your chances of obtaining a decision in your favor.
- If the execution of a will is contested or involves a complex family structure, then having an experience attorney involved is definitely recommended.
- If the beneficiaries are designated and the amount inherited is less than $100,000, then probate should not be required.
- Financial accounts that have designated beneficiaries, such as an IRA, are exempt from probate proceedings.
- Real estate included in a will can cause problems in relation to liquid assets that are frozen during the process. Sometimes, a house may need to sold, so that estate taxes can be paid, which will then allow the other liquid assets in the estate to be unfrozen.
During our broadcast, we also addressed the topic of what constitutes a proper will. Two basic types of wills are accepted as being proper:
- A will drafted in pen that is 100% written by you entirely in your own handwriting. It should be dated, but, no formal format is required.
- A will that is typed or written by someone else is acceptable, if it has been witnessed and notarized by two disinterested parties.
Most disputed wills concern either its validity or the state of mind and testamentary intent of the decedent when it was drafted.
Creating a video of the signing of a will helps to create potential evidence in court to support the validity and intent of a will.
If a will includes a No Contest clause, which will remove any beneficiary from an estate who contests its validity, then a possibly acceptable method to indirectly challenge it would be to claim that undue influence was used to change the will.
Other points we covered on the subject of wills include:
- Do not store your will in a bank safety deposit box, because it will not be immediately accessible unless someone else has the key and signatory access. Keep it in some other safe place, such as a fireproof lockbox in your home, and tell the estate trustee where it is located.
- The probate process usually takes a minimum of nine months, with a four-month window for creditors to file a claim.
- If your estate contains a house or other property, the best way to avoid probate is to transfer ownership of your real estate to a living trust.
- To implement a probate process, a will must be submitted to a court, so that jurisdiction can be established. The executor usually submits a will for probate, but other parties, such as a creditor, can also file the will.
- In some cases, multiple family members will file a will for probate, with the intent of each person being designated as executor of the estate. In such cases, the court will decide which petition to accept.
- The executor must notify known creditors of the death. A public notice must also be filed according to local requirements.
- The California Probate Code is clear about what assets need to go through probate, so you can effectively create your estate plan and be well-prepared for life’s only inevitability before it occurs.
If you missed the original broadcast of this show, you can listen to a podcast by directly streaming or downloading the MP3 file in our Radio Show Archive.
If you have questions or concerns about any of the topics mentioned above and would like a free consultation with Connie Yi, a California estate planning attorney, please contact us. We have four conveniently located offices around the Bay area: San Francisco, San Mateo, San Jose, and Pleasanton.