Probate and Trust

Do you know what will happen to your estate’s property and assets when you’re gone? When you’re gone, will your tax planning and estate planning efforts make the process easier and less costly for your loved ones?

In many cases, a decedent’s estate must pass through a California probate court for heirs to receive their inheritance. The probate process can be long, expensive, and stressful for those left behind. A Santa Barbara probate lawyer can help loved ones navigate the complicated probate process in California.

Santa Barbara Estate Planning & Elder Law attorneys are often asked to guide families through the probate process. We meet many new clients for the first time, helping them settle the estate of recently deceased family members. These families often choose to do comprehensive estate planning with our law office after going through the taxing probate process once with a loved one.

What is Probate?

When people pass away with just a will, or no estate plan at all, their families have to put the estate through a process called “probate.” Probate is a court-managed proceeding where assets are retitled and distributed according to the will or the law of intestacy (when someone passes away without a will). While most of our clients set up their estate via a living trust, which avoids this process entirely, many estates have to go through probate.

If you find yourself in the position of needing to open probate for your loved one’s estate, you need a probate lawyer in Santa Barbara, CA, that is experienced in estate planning law and probate proceedings.

Which Assets Go Through Probate in California?

California probate law requires that any assets or property owned solely by the deceased at their death go through probate court.

This includes almost any tangible thing of value, including:

  • Real estate property
  • Motor vehicles
  • Boats
  • Collectibles
  • Art

The decedent’s intangible property is also subject to probate, which includes:

  • Contents of bank accounts, including savings accounts and checking accounts
  • Life insurance benefits
  • Stocks and bonds
  • Business interests
  • Intellectual property rights

Keep in mind that for any of these items to be considered probate assets, they must be owned solely by the decedent.

Meet with an experienced probate lawyer to determine the best estate plan for your needs so your loved ones can avoid probate altogether.

Which Assets Do NOT Go Through Probate in California?

On the other hand, some assets are exempt from probate litigation and can be passed directly on to surviving loved ones.

Property That Is Owned Jointly

In certain situations, if the deceased owned property jointly with a spouse or other individual, there may be a right to survivorship held by the joint owner. If this is the case, the surviving owner will gain full property ownership outside probate court. This is often true in real estate law when a spouse dies, and the family home is owned jointly between the two spouses.

Assets That Are in Revocable or Irrevocable Trusts

Estate planning attorneys and financial advisors know that one significant benefit of living trusts is that the ownership of assets is often transferred completely to the trust itself. This means that the decedent is not legally the owner of this particular asset, and it will not be included in their estate for probate purposes.

Certain Retirement Accounts

Many retirement accounts—like IRAs and 401Ks—have beneficiaries named on the documents for the account. If this is the case, the ownership of the retirement account would automatically transfer to the listed beneficiary or beneficiaries without going through probate.

Accounts That Are Payable on Death

Some assets and financial accounts are set as “Pay on Death” (POD), which means that ownership of the account or asset transfers immediately to the named beneficiary upon the death of the person who set up the account.

What’s the Process for Probate Matters in Santa Barbara, CA?

Perhaps you are wondering what is involved in probating an estate. While every probate case is admittedly different, here is a partial list of what the estate’s executor will be responsible for doing in typical probate proceedings:

  • Locate the decedent’s last will and testament (if he or she had any wills in place) and file it with the local court
  • File necessary probate documents with the court
  • Locate, inventory, custody, close, and transfer personal assets and accounts
  • Appraise and determine the value of all assets and property in the estate
  • Locate and notify all known creditors of the estate
  • Make payments to creditors, discharge the decedent’s obligations, and obtain creditor releases
  • Process and obtain life insurance death benefits, if any
  • Secure the decedent’s residence and tangible personal property
  • File tax returns (federal and California) and make appropriate tax elections
  • Pay estate taxes and final personal income taxes, if any
  • Obtain tax releases and closing letters from the IRS, local courts, and state taxing authorities
  • Make specific bequests, together with partial and final distributions, to beneficiaries
  • Provide detailed accounting to beneficiaries and the local court

As you can imagine, accomplishing all of this takes an enormous amount of time and can be both complicated and frustrating. When you factor in the grief that comes with losing a loved one, the process can seem overwhelming.

A Santa Barbara Probate Attorney You Can Trust

At Santa Barbara Estate Planning & Elder Law, we can help you navigate the probate process and settle your loved one’s estate as quickly and economically as possible. We will lift the burden off your shoulders, so you can focus on what is most important—coming to terms with your loss and preparing to move on with your life.

Contact one of our Santa Barbara Estate Planning Attorneys today to schedule a planning session about your probate needs or setting up an estate plan.

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1You Schedule A Call

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2We Suggest A Solution

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Frequently Asked Questions
Let’s Face It — You Have Questions.

Do you need a lawyer for probate in California?

Having legal representation is not required according to probate law in California. However, if you’re the executor of your loved one’s estate, it’s typically in your best interest to enlist the help of a probate attorney or experienced legal team.

Not only can they do all the legal legwork for you in probate administration, but they can also ensure that no stone is left unturned so that you and your family can avoid further issues with probate matters.

How much does an estate have to be worth to go to probate in California?

Estates in California valued at $166,250 or less could qualify for an informal process for settling the estate and may not have to pass through California probate court.

How long does California probate take?

The executor of the decedent’s estate typically has one year to complete the probate process. The court may take action if the executor does not complete probate or if they do not update the court on their progress.

It can take a good amount of time for assets to be compiled, creditors to be identified, and other financial obligations to be settled after a person’s death. Complications like legal disputes, family feuds, or a contested will can also extend estate litigation.

However, most probate cases in California take between nine months and a year to complete, with more complex cases often taking up to two years.

What happens if you don’t file probate in California?

If probate isn’t opened, all of the assets and property belonging to the deceased will remain in their name forever. This means the assets cannot be sold, distributed, or even used to pay off the decedent’s debts.

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