Probating Your Loved One’s Estate

by George F. Dickerman, Attorney and Counselor At Law

Many of us have already prepared an “estate plan” (a “living” trust, for example) and, if the plan was properly done, may be able to avoid probate court altogether.

“What do you mean MAY be able….I thought that’s what my living trust was supposed to do?”

Well, if properly prepared, executed and funded, then you should avoid probate. However, problems can arise from sloppy work or failure to fully execute the estate plan. If that happens (or you don’t have a trust to begin with), then your loved one’s estate may need to be “probated”.

But first, when a loved one passes away, don’t panic and rush around the house trying to locate insurance records, financial statements, and the like: this is not legal advice, just personal experience. There is time enough to do those things. Relax. Spend the time you need to share with family, attend to funeral matters, and give yourself strength to get through your own grieving process.

Soon the turmoil will calm and the probate process can begin. Start by locating a will, if there is one. If not, the decedent’s estate will be distributed to closest relatives according to a statutory preference list. If there is a will, then an “executor” or estate representative should be named whose duties will include carrying out the intent of the decedent.

Some of the things that will need to be done to probate an estate include:

Determine heirs and beneficiaries

Make a complete list of all real and personal property, including bank accounts, stocks, bonds, other investments, life insurance, etc. (Each type of property must be properly classified as to ownership, such as joint tenancy, community or separate property, etc.)

Prepare a schedule of assets and liabilities. Each property item must include a determination of value. The list of debts must be compiled and an order of priority established.

If Medi-Cal benefits were paid to the decedent during life, the Department of Health Services must be notified.

Property may need to be transferred into the name of the beneficiary. This can be a relatively informal process, depending upon the type of property, how ownership is held, and its value. Many bank accounts may be transferred to a beneficiary without the need to obtain a court order, if the account is a “POD” (payable on death).

An affidavit of death of joint tenant is a relatively simple form that can transfer ownership from, for example, husband to wife, without court intervention.

A Probate Code Section 13151 Petition to Determine Succession to Real and Personal Property is also a relatively simple way to transfer ownership of real property valued at less than $100,000.

Final income tax returns (Federal & State) will need to be completed. Tax consequences should be considered, and a basic knowledge of “stepped-up” basis rules for inherited property should be acquired.

As with all court matters, it is necessary to cross all the “T”s and dot all the “I”s properly.

When all has been done properly, you will eventually receive your Order of Final Distribution, the estate assets will be transferred to beneficiaries, receipts from the court will be obtained, and you will finally request and receive your Order of Discharge from your duties as personal representative of the estate. Take a deep breath ...maybe a “living trust” is worth a second thought.

George F. Dickerman is a private elder law attorney. For information on other related subjects, call his offices at (951) 788-2156.

  Return to Text Only Elder Law Magazine Index