Dealing with the end of the life of a friend or loved one is a difficult time. Grieving is difficult and the last thing you probably want to handle is legal hurdles. Like any legal procedure, it is difficult to predict how long a probate case will last. Most probates in Los Angeles California take about a year, some much longer. It comes as no surprise, then, that many people hope to avoid the process altogether. Whether it is possible to avoid probate depends on many factors, especially if there is a will.
Not all wills must go through a full probate process in California. However, all wills do have to be filed with the court. California probate code § 8200(a) states that within thirty days of learning of the death of the testator, the custodian of the will must “deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered.” Following the delivery of the will to the clerk of the court for safekeeping, a petition should be filed to start the probate process.
The named executor, also called the “personal representative,” is typically the person who files this petition. When there is a will, but there is no named executor, the person who wants to become the executor, files a petition for probate administration with will annexed.
In some circumstances, there is a simplified probate procedure available. If the value of the estate is less than $150,000 any person entitled to the asset, can submit to the bank or other entity, an affidavit that states there is no probate, and that he or she wants to collect those assets without a court filing.
With a 13100 Affidavit, there is no probate process at all. This becomes somewhat difficult where there are creditors. Note that not everything the decedent owned at the time of his or her death is included in the calculation of the estate’s value for purposes of determining whether the estate is eligible for simplified affidavit procedure. For example, property held as a joint tenant, life insurance, or property held in trust are just a few common exclusions from the value calculation. This is one of the many reasons that estate planning to ensure that your assets pass outside of probate can be an enormous advantage for your executor.
Where there are disagreements as to who should collect the asset under PC 13100, if the parties cannot agree, they can seek declaratory relief about who will collect the assets.
Simplified procedures are not appropriate in every case even when the estate is small, such as where there are allegations of undue influence or fraud.
What is probated can be easy or complex. We have extensive experience in all types of probate matters. Contact us today so we can help answer your questions about the process.
