Probate is administered by the executor (if there is a will) or by the personal administrator (if no will). Often, however, the average person does not have the experience or time to maneuver the probate process alone. There may also be personal or professional reasons why the individual may need assistance with probate.
What happens if more than one person is petitioning the probate court to become the personal representative of the decedent’s probate estate?
If there is a will, and the will designates an executor, then the named executor will most likely be appointed, subject to the caveats below.
A year after his death, Robin Williams’ third wife, Susan, and his kids Zachary (from his first marriage), Zelda and Cody (both from his second marriage), are still at war with one another. The issues at stake are: division of his personal property, which was not explicitly dealt with in his trust, and; how much money is needed to maintain the residence that Susan shared with Williams, for which, per Williams’ estate planning documents, his estate is to provide sufficient funds to maintain during Susan’s life.
When a loved one dies and probate is necessary, what happens? Who begins the process, and how?
If there is a will, whoever has custody of the will should first deposit the will with the probate court in the county where the decedent lived. This is supposed to be done within 30 days of the decedent’s death.
When someone passes away, their property needs to be distributed to their heirs and/or beneficiaries. Probate is the most widely known manner of doing this. But how do you know if probate is necessary? Not everyone’s property needs to go through probate; this article will address the circumstances under which probate will not be necessary.
There are some occasions where an individual may not be privy to whether a family member provided for them in their will, in life insurance, in a trust, or in some other manner. This can arise where family members have become estranged; a common scenario involves remarriage of a parent, the new spouse of which does not get along with the children.
A full probate proceeding is not always necessary, even if the Decedent did not have a trust. This blog will briefly survey the available procedures for transferring non-trust, non-joint assets of a decedent.
A full probate is necessary if the Decedent’s gross estate is valued at more than $150,000, or s/he had real property in California worth more than $50,000. The probate process is described in detail in our 8-06-2015 blog.
A will or trust can not only fail to carry out the decedent’s intent, it can actually frustrate the intended estate distribution, and cost the decedent’s loved ones significant time and money, not to mention anguish.
Particularly in an era of online-assisted do-it-yourself legal work, poorly made self-made and cookie cutter wills and trusts abound.
No contest clauses, also known as in terrorem (literally, “in fear”) clauses, are a type of safeguard against will and trust challenges. Inserted by the testator (the person who made the will) or trustmaker (aka “trustor” or “grantor”), these clauses effectively tell beneficiaries, “if you try to challenge the will/trust, you will lose your share of inheritance.
As noted, wills and trusts are the most common estate planning tools, but are far from the only tools. Depending on family dynamics, estate size and composition, a client may also want to engage the following.
FAMILY LIMITED PARTNERSHIPS AND LLC’S
For families that own significant assets such as rental property or operate small businesses can benefit from the use of entities such as family limited partnerships (FLPs) or family limited liability corporations (LLCs). These entities provide several benefits for parents and subsequent generations.