Frequently Asked Questions
Ask the estate planning attorneys at Generations
- What happens during probate?
- What assets are subject to probate in California?
- How is the probate process initiated in California?
- What are the benefits of having an estate plan?
- When does an estate plan need to be reviewed?
- What is a will?
- Can a will be changed or modified?
- What is a will contest?
- What is a personal representative and what are their obligations?
- What are some common mistakes people make when looking for an estate planning attorney?
A will generally contains the name of the person who was selected to carry out the instructions in the will (the executor) after the death of the testator (the person whose will it is). In California, when the testator dies, the executor files a petition with the superior court asking to be appointed as personal representative of the estate. If someone dies without a will, the California Probate Code provides a list of who has priority to be appointed as the personal representative. This person will be called the administrator. Collectively, executors and administrators are called the personal representative.
The attorney for the person seeking to be appointed as personal representative files the will if there is one and the petition to start the probate process and to appoint the personal representative. Then the probate court will set a date for a hearing. The attorney will then send a notice of that hearing to beneficiaries named in the will if there is a will, and to the closest relatives even if they are not named as beneficiaries informing them of the date of hearing. During the hearing, any objections or disputes will be heard and resolved.
The validity of the will can be upheld or denied at the discretion of the court, depending on the facts and circumstances of the case. The court may appoint the petitioner as personal representative if there are no objections, or the court may appoint someone else. Once the personal representative is appointed by the court, the personal representative makes a list of the estate's assets, determines the creditors of the estate, pays pending bills, files tax returns, and begins managing the estate’s assets. During this time, potential creditors are informed of the deadlines for filing a claim to collect the amount they can show is due from the decedent’s estate.
After the debts of the estate are paid and the time for creditors to file claims against the estate has lapsed, the attorney for the personal representative can file a petition requesting permission to distribute the estate. The personal representative’s duties are complete after the petition is granted by the court, the estate's assets are distributed among the heirs and the court releases the personal representative from further duty.
Not all property or assets owned by a person are subject to probate. The assets subject to the probate process are the decedent’s one-half interest in community property, the decedent’s share of assets held as a tenant in common, and the decedent’s assets that do not have a beneficiary designation and were not titled in the name of a trust.
In California, the probate process is initiated by filing a petition for probate at the superior court in the county in which the deceased person resided. Usually, the petition is drafted by a probate attorney for the individual who wishes to become the personal representative of the estate. The probate petition provides details about the deceased person and the person who wants to become the personal representative. The petition also includes information about the size of the estate and whether the decedent had a spouse or children.
An estate plan is a roadmap you draw for your loved ones to follow. It is a comfort for them during a time of extreme grief and emotional stress. It can help avoid bitter family battles, unnecessary tax liabilities, unnecessary legal proceedings, and costly court and attorney fees. A good estate plan will ensure that your assets are managed, distributed, and disposed of in the manner that you intended after you become incapacitated or die. A comprehensive estate plan lessens the burden that families suffer. Through the creation of certain types of trusts, estate plans can also protect property that you pass on to your heirs from any creditors to whom your beneficiaries owe money. In the absence of a proper estate plan, the job of managing and disposing of your assets, even the custody of your children, passes into the hands of the courts and this can be a lengthy, costly procedure that may produce results that you would find unacceptable.
Your estate plan may need updating when your life changes, or there are changes in the lives of the people named in your estate plan. These changes include births, deaths, marriages, divorces, and disability. Estate plans should also be reviewed when there has been a large increase or decrease in your net worth (or maybe even in the net worth of your beneficiaries), as well as changes in the type of assets included in the plan, the purchase or sale of a business, a change of residence to another state, or changes in the applicable tax law. Accordingly, even if you have an estate plan already drafted, Generations recommends that you review the plan at least once every two to three years to consider whether the decisions you made are still the best choices for your family.
A will is a written document that expresses a person's intent concerning what should be done with the person’s property after the person’s death. A will also can nominate the guardians of the person’s minor children. The person who makes the will is called the testator.
So long as the testator continues to have adequate mental capacity, the testator can change the will any time. This can be done with a new will or with a codicil, which is an amendment to an existing will.
A will or codicil may be revoked by signing a subsequent will or codicil, or by burning, tearing, cancelling, obliterating, or destroying the existing will or codicil. This, however, can cause confusing and fighting if testators do not leave a clear record of their intent.
Will contests are formal challenges to the validity of a will. In California, valid grounds for contesting a will include lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.
The person who represents a decedent's estate is called several different things; traditionally, the person appointed by a will to represent the estate is called the executor (or executrix, if female). In California, the person appointed by a court to represent the decedent's estate is called the personal representative. The personal representative's responsibilities include:
- Giving the proper notice to interested parties and creditors of the estate
- Retaining the professionals needed to assist in the estate's administration, such as attorneys, accountants, and appraisers
- Collecting and safeguarding all of the decedent's property
- Receiving, evaluating, and either approving or rejecting claims against the estate
- Filing tax returns and paying any required taxes
- Paying the expenses of administering the estate
- Paying the amounts due to the decedent's heirs that are statutorily due under state law
- Distributing the estate property according to the court order
- Closing the estate
When people are faced with the emotional task of setting up an estate plan, including a trust or will, they can often make erroneous choices with costly consequences for themselves and their loved ones. The attorneys at Generations have compiled some guidelines to help you avoid these common pitfalls. Please continue to read a list of the most common mistakes people make when choosing an estate planning attorney.
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