Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will. Typically, the executor named in your will would start the process after your death by filing a petition in court and seeking appointment. Your executor would then take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries. If you were to die intestate (that is, without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator to handle your estate. Personal representative is another term used to describe the administrator or executor appointed to handle an estate.
Simpler procedures are available for transferring property to a spouse or domestic partner or for handling estates in which the total assets amount to $166,250 or less including no more than $55,425 of real estate.
The probate process has advantages and dis-advantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests.
One disadvantage, however, is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust without even taking the estate taxes into account.
Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust. Discuss such advantages and disadvantages with an estate planning lawyer before making any decisions.
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We serve the communities of Santa Barbara, Ventura, Los Angeles and San Diego Counties as well as the greater state of California including, but not limited to the cities of Santa Barbara, Ventura, Oceanside, Oxnard, Westlake Village, Carlsbad, Santa Maria, Escondido, Encinitas, Camarillo, Goleta, San Marcos, Thousand Oaks, Simi Valley, Vista, Moorpark, Newbury Park, Carpinteria, Solano Beach, Ojai and Santa Ynez. We are a general practice focusing on estate planning and probate, family law and business law. These areas of law include, but are not limited to, trusts, wills, trust administration, probate and trust litigation, divorce, child custody, child support, adoption, spousal support, prenuptial agreements, business formation, governance and litigation. This website is for informational purposes only. Using this site or communicating with Seige Law PC through this site does not form an attorney/client relationship. This site is legal advertising.
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