Probate
Probate is the court procedure used to transfer assets out of an individual’s estate after they’ve passed away.
Do I have to go through probate?
When an individual has passed away without a trust in place and with over $184,500 worth of assets in their estate, their assets will have to go through probate. An individual's estate is made up of all of their assets, including, but not limited to their home, bank accounts, securities accounts, etc.
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If an individual has a life insurance policy or a retirement policy that does not have a proper beneficiary named (I.E. the beneficiary passed away, the beneficiary wants to disclaim their interest, etc.), then the amount obtained from the policy will revert back to the estate - which could mean that the estate now has to go through probate.
Why is probate less favorable?
You may have heard a thing or two about probate and chances are those things you've heard are not positive attributes. In California, probate is undesirable for a couple of reasons.
Number one, it is completely public. Not only will your family members know exactly how much money you had in your bank account, but so will the rest of the world. Probate is a public proceeding, so anyone can access the public documents to see exactly how much you had in your estate.
Number two, it is time consuming. A probate proceeding is required, by law, to be open for at least 4 months in order to allow creditors to come forward and state a claim. In most counties your initial court hearing to become appointed as Administrator or Executor is set at least one month past the date you filed your petition. The last thing you want your loved ones to have to do during their grieving process is to undergo a court proceeding that will last a minimum of 6 months, but likely longer.
Number three, it is costly. Probate costs approximately 5% of the fair market value of your assets. This is money that is taken out of your estate and away from your beneficiaries to pay for the filing fees, court fees, attorney's fees, and administrator's fees. All of which could be avoided.
These are the top three reasons why people try to avoid probate.
How Can Fortitude Estate Planning Help?
Fortitude Estate Planning will assist you throughout the entire Probate process. We try to make it as easy as possible for our clients by doing all of the heavy lifting. We know that Court and family dynamics can be intimidating, but we are here to help.
Our team will draft all of the required court documents, ensure that you know what fiduciary duties you're required to uphold as an Administrator or Executor, assist you with the transfer of assets, and educate you about the process to ensure that you know what is happening each step of the way. ​