COMMON MISCONCEPTIONS ABOUT PROBATE
Oct. 19, 1921
Many people’s conception of wills and how they are administered derives from TV dramas where someone in a musty room reads the will and gasps arise from those who feel left out or cheated. As much as TV dramas are entertaining, they’re not really what happens when a person dies with or without a will.
Unless the deceased had set up a living trust or another form of a trust, that person’s assets will have to go through a courtroom process known as probate. This holds true whether they left a will or died without one, which is called dying intestate.
Even more misconceptions surround people’s views of probate. Some view it as an attempt by the state to seize assets; others believe that it is so costly and time-consuming that there are no assets left to distribute once it’s all over.
Rodney Gould stands ready to guide you through the probate process, which can involve endless paperwork, creditors’ claims, tax payments, and even challenges to the terms of the will. If you live in or around Los Angeles, California, or the nearby communities of Sherman Oaks, Studio City, West Hollywood, or Beverly Hills, call the Law Office of Rodney Gould to schedule a free consultation today.
Common Misconceptions About the Probate Process
Unless you’ve been through probate previously as an executor (the one charged with administering the will), it’s pretty easy to develop some misconceptions about the whole process. Here are some of the most common misconceptions:
If I have a will, my estate won’t go through probate. No, if your assets are greater than $166,250, probate will be required. (If your assets are less than $166,250, California allows for a simplified process that doesn't require probate.) In probate, the personal representative you name in your will – your spouse, legal partner, or other family member or associate – will become executor of the will who must survey and take charge of your assets. (If you die without a will, the court will appoint a personal representative based on a hierarchy spelled out in the California probate code.) After creditors and taxes are paid and if there are no challenges, then the named beneficiaries can receive their share. All along, this is done under the supervision of the probate court judge.
Probate means the state will seize all my assets. Not true. Even if you leave no will, the state will use a hierarchy of relatives, beginning with your spouse and children, to divide your assets for your heirs. The state will not touch your assets, but if you owe unpaid taxes or fines, those will have to be honored during the probate process.
Estate taxes will consume all my assets. California is among the 38 states that do not impose an inheritance tax, so your estate will not be taxed upon your death. Federal law imposes a tax on estates valued at $11.7 million and up, but there is an exemption in 2021 of $23.4 million per couple. Beneficiaries receiving your assets may, however, be subject to taxes on the money or assets received, but that is not an estate tax per se.
The probate process takes years to finalize. It might if the estate is huge and there are multiple challenges, but generally, probate should be over in less than a year. There are built-in delays that must be honored, however. For instance, there is a four-month creditors’ claims period that must be observed. Remember, probate involves assets that are individually owned by the deceased. Jointly owned assets go to the named beneficiary upon death. These include property held jointly with the right of survivorship, life insurance policies, retirement accounts naming a beneficiary, and joint bank accounts.
I don’t need an attorney to go through the probate process. Though it’s possible to satisfy all the demands of the probate process by yourself if you’re the named personal representative or the one appointed by the court if none has been named, it can be a grueling task. You have to take charge of all the assets, sell them as necessary to satisfy creditors and the personal taxes of the deceased, file reams of paperwork, and in the end, divide what’s left with the named beneficiaries.
Along the way, you may be upended by contests to the will or by creditors who are making unreasonable demands. If you haven’t been through the process before, it can quickly drain and overwhelm you. An attorney who knows the ins and outs of probate can expedite matters while meeting all the demands of the probate judge, beneficiaries, and creditors.
Working With an Experienced Probate Attorney
At a time when you’re still grieving the loss of a loved one, handling probate and all its legal demands can be the last thing you want to do. Rodney Gould can fulfill all the responsibilities of settling the estate, satisfying all financial obligations, and bringing the process to a close as quickly as possible.
If you’re facing probate in the Los Angeles area, rely on the knowledge and experience of the Law Office of Rodney Gould. Call today to schedule a free consultation.