How to Get Rid of the Probate Process and Avoid It Entirely

Probate is the legal process that follows a person’s death, where their property is divided up among their heirs according to state law. It can be time-consuming and expensive for everyone involved. In some cases, it can take months or even years, but it doesn’t have to. 

Avoiding probate in your estate plan can save you money and time when compared with going through the court system for an executor or administrator to take care of your final wishes.

Many people have no idea that you can avoid the probate process. For instance, in some states, such as California, if your estate is under $100,000 and you don’t want to go through a lengthy court procedure, then leaving everything in your will is fine. But if your estate exceeds this amount or there are other assets like stocks or real property, then it’s best to consult with an attorney before distributing anything. So let us explore how the process works and ways that it can be avoided.

Is Probate Necessary?

Probate is not terminology relating to art, but rather a legal process. Probate is the legal process that follows a person’s death. It is where their property is divided up among their heirs according to state law. It can be time-consuming and expensive for everyone involved. In some cases, it can take months or even years, but it doesn’t have to. Avoiding probate in your estate plan can save you money and time when compared with going through the court system for an executor or administrator to take care of your final wishes.

Many people have no idea that you can avoid the probate process. For instance, in some states, such as California, if your estate is under $100,000 and you don’t want to go through a lengthy court procedure, then leaving everything in your will is fine, but if your estate exceeds this amount or there are other assets like stocks or real property, then it’s best to consult with an attorney before distributing anything. So let us explore how the process works, if probate is necessary, and ways that it can be avoided.

Probate: The Process

You may be wondering, is probate necessary? There are many factors to take into consideration. If you own assets in your name only, those assets will pass to your beneficiaries upon your death. However, if your estate includes assets that are titled as a joint account or with the rights of survivorship, then assets held jointly by several people pass outside of probate. If you own real property in another state (e.g a vacation home), then the law of that state will govern those assets and may not recognize the rights of survivorship. In those instances, probate will be necessary. This means that your estate will have to go through the probate process in order to transfer ownership of the property from you to your beneficiaries.

The probate process begins when you die and family members gather at the “probate court” to file a Petition for Probate. This form provides information about the deceased’s assets and debts, the names and contact information of his or her heirs, and the wishes expressed in his or her will. This information is forwarded to the judge who supervises probate filings. A copy of the will is attached to the petition so that the judge can see what you intended to have happened with your property after you passed away. The judge also needs to be informed about who will be responsible for managing the estate during probate. This would usually be an Executor or Administrator of the Estate.

The judge orders a copy of the death certificate and informs the Department of Vital Statistics that a probate proceeding has been opened. The court will send out a notice to creditors informing them that they must file their claims within four months after the date that probate was opened. 

The notice advises creditors that they may file claims against the estate in order to recover any unpaid debts owed by the deceased. Creditors are given information about how they can file their claims, for example, whether they can mail them to a particular address (usually the court) or whether they need to present them in person at a hearing in front of the judge who supervised the probate proceeding (this is called “proving a claim”). Once all of the creditor claims have been filed with the court, the court issues a Certificate of Assignment allowing an Executor to pay off any debts owed by the deceased if there are sufficient assets remaining after paying off secured debts and funeral expenses. Claims must be paid off in order for any remaining assets to be available for distribution to heirs under the terms of the decedent’s will or intestacy laws.

Once all of the creditor claims have been filed with the court, the court issues a Certificate of Assignment allowing an Executor to pay off any debts owed by the deceased if there are sufficient assets remaining after paying off secured debts and funeral expenses. Claims must be paid off in order for any remaining assets to be available for distribution to heirs under the terms of the decedent’s will or intestacy laws.

Probate: What Happens Next?

For most estates, assets valued at $150,000 or less do not require judicial oversight and can be distributed without going through probate court. Instead, a simple procedure that allows family members to transfer titles without involving lawyers is available. For instance, if you live in California and have less than $150,000 in personal property (not including real estate), you can create a document called a “Pour-Over Will.” This document directs your personal representative (i.e., executor) to take the title of all property held solely in your name upon your death and distribute it in accordance with your last will and testament (if applicable). This way, you can avoid probate altogether if you want because all of your assets will pass directly on to whomever you named in your last will and testament without going through any kind of administrative process with a probate court.

If you don’t have a last will and testament or it fails for some reason, then your estate will go through probate because there is no way for anyone else to know what you wanted to be done with your property after you passed away short of having a will. This means that the probate court must be involved in order to distribute your property. The probate court is in charge of overseeing the probate procedure, determining the validity of wills, and allocating property according to state law.

Generally, the court looks at the terms of your last will and testament to determine who gets what. If you don’t have a last will and testament, then the probate court will usually look to state law to decide who gets what. State law determines how assets will be distributed if there is no will or if the will fails for some reason.

The probate court also has the power to appoint an executor or administrator to take care of the estate’s business during the probate process. An executor or administrator can be an individual, a company, or a trust. In California, for example, the court must appoint an Executor to administer the estate if there is no Executor named in the will.

If you live in California, then your Executor must submit an Affidavit to creditors within nine months after probate is opened (unless the judge grants an extension). However, this doesn’t mean that your Executor has nine months to pay off all of your debts. Rather, this Affidavit informs creditors that they have nine months from the date of the Affidavit to file a claim against your estate. If creditors fail to file their claims within nine months, then they lose their right to make a claim against your estate. This is one of the primary advantages of using an Affidavit instead of a pour-over will because it allows creditors only nine months (instead of three years) to file their claims.

If creditors do file their claim against your estate, then they are probably entitled to payment on any debt you owe them. The executor has the duty of collecting and selling off the deceased’s assets in order to satisfy these debts. Any assets left over after paying off the deceased’s debts are then available for distribution among his or her heirs.

Summary

To sum up, what we have covered, probate is the legal process that happens after someone has passed away. It is the process that is used to divide up someone’s properties and assets which can then be given to their heirs. Depending on what these properties are, how much they are worth, and if the last will and testament of the deceased is valid, will the probate process go forward. It is a process that can be expensive, take a lot of time, and can be painful for everyone involved. It is something that can be avoided though if you take the necessary steps to do so beforehand. Most people don’t even know that this is a viable option as it is not really talked about. If you are still uncertain whether the probate process is necessary in your case, then you should probably seek out the advice of an attorney who can talk about probate in depth.