Probate and Trust

Lost a loved one and facing probate court to settle their estate?

The thought of going through estate litigation in Santa Barbara, CA can cause a feeling of dread for most people, and with good reason. The proceedings are long and grueling and the paperwork is overwhelming.

The details of probate vary from state to state, so the process looks different depending on where the deceased owns the property. To add to the confusion, separate proceedings are necessary if the deceased has property in more than one state.

All of this is piled on top of the fact that you’re already experiencing the loss of a loved one and are trying to navigate your grief.

You don’t have to walk this legal road alone, though. A Santa Barbara probate lawyer can help make the process as smooth as possible while ensuring the wishes of your lost loved one are honored.

What is Probate?

Probate proceedings are a court-supervised process that is used to ensure that the estate of a deceased individual— often called the “decedent”—is being administered in a way that adheres to probate law.

During probate administration, a probate judge will determine:

  • Whether the decedent had a valid will
  • What the value of the decedent’s estate is
  • Who the named beneficiaries of the estate are
  • How any legal issues or legal disputes will be settled

Once these items are determined, the deceased individual’s estate will be settled, with debts being paid to the estate’s creditors and the remaining assets being passed to the beneficiaries.

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 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.

That’s why we recommend that people work with qualified probate lawyers from their local community when it comes to probate matters. A probate lawyer will make sure that the rules are being followed and free loved ones from the headaches associated with the paperwork and probate documents (A.K.A. “red tape”).

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.

Which Assets AVOID Probate According to California Probate Law?

On the other hand, some assets are exempt from probate litigation and can be passed directly on to surviving loved ones without the involvement of probate court.

Jointly Owned Property 

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 of 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 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 individual 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 defined 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.

Avoid California Probate Court With a Team of Estate Planning Attorneys

Wondering how to avoid probate in Santa Barbara, CA?

According to California probate law, any estate that exceeds $166,250 in value must go through probate court. Any estate that is valued at less than this amount may qualify for a simplified version of the California probate court process.

Many of those who engage in probating an estate for a loved one end up wanting to do their best to avoid probate with their own estate plan by engaging in estate planning practices, like creating a living trust or setting up accounts that are payable on death.  

How a Santa Barbara Probate Attorney Can Help

A knowledgeable probate lawyer will have experience with the probate process and can make it smoother for the beneficiaries of the decedent’s estate. A probate attorney will also understand the concerns of those involved and will keep clients up to date and informed on the status of their case.

While a will lawyer or a trust lawyer are great resources during the estate planning process, a probate lawyer may be needed after the estate holder passes away and while the estate is actually being administered.

Estate planning attorneys in Santa Barbara, CA can help properly file any legal documents associated with the probating estate and ensure the legal paperwork is in order.

Reach Out to a Santa Barbara Estate Planning Attorney

At Santa Barbara Estate Planning and Elder Law, we are here to assist you with your probate and estate administration needs. It is our goal to make navigating the complicated world of probate as easy as possible and help you carry out the wishes of your deceased loved one.

Some of the related practice areas we offer services in include:

If you have specific questions or you are not sure how to get started with the probate process, contact our law office and schedule a consultation with our legal team.

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FAQ: Santa Barbara Probate Law
Let’s Face It — You Have Questions.

Are probate records public in California?

Probate is a public affair. Because the will or estate goes through the court system, the information that arises is a matter of public record. While this may not be a major concern for some people, others prefer to keep matters of money, property, and inheritance private.  

Those who only have a will and those who have not planned their estates at all will have their assets go into probate. But those with assets in a living trust will avoid the whole probate process so that their assets can be handed down quickly, efficiently, and privately.

What is an “executor”?

Also called a “personal representative,” the executor is the individual that handles settling the estate of a deceased person. They typically file probate for the estate and they are responsible for:

  • Settling the debts and other financial obligations of the estate
  • Paying any applicable estate taxes out of the estate’s funds
  • Ensuring that all remaining assets are distributed to the estate’s rightful beneficiaries

Personal representatives are sometimes named in the decedent’s will or—if there is no will in place or no executor named in the will—the probate judge may appoint an individual to serve as the estate’s personal representative.

How long is probate in California?

According to California probate law, the executor of an estate has a deadline of one year to settle the estate and complete the probate process. If they can’t complete probate within the year, they must report the status and give an update to the court.

Some probate matters take longer to resolve. For example, if someone is contesting the will of the decedent, the estate is vast or complicated, or the executor is finding it difficult to locate beneficiaries.

What is a trust?

A trust is a fiduciary relationship that enables a third party—called the “trustee”—to hold onto assets that will be transferred from the original owner—or the “trustor”—to the individual who will inherit the assets—the “beneficiary.” Trusts can be revocable, which means that they can be altered or closed at any time during the trustor’s life, or they can be irrevocable.

A trust avoids probate, helps to set out the trustor’s wishes in advance, and allows for a trustee to follow through on those wishes when the time comes. Some trusts—like irrevocable trusts—may also allow the assets to avoid creditors and even estate taxes.

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