The probate process is a judicial procedure by which a last will and testament is determined to be valid. Once that is accomplished, the wishes and directives of the deceased person are then carried out as set forth in the will. Other tasks are undertaken, including paying the costs associated with a deceased individual’s final illness, funeral, and disposition of remains. In the absence of a last will and testament, the probate process applies the laws of the State of California as means of determining what happens to a deceased individual’s assets and debts.
Having pointed out these basics, there is a good deal more to estate and probate law, practices, and issues. Inasmuch as we all will have a point in our own lives when we face the death of a loved one, and our own passing is inevitable, wisdom dictates that we do have a basic, but essential, understanding of probate.
Different California Probate Procedures
California law establishes a number of options in regard to the probate of the estate of a deceased individual. If a person has undertaken comprehensive estate planning during life the probate process may be able to be avoided all together at the time of death.
If a person has a smaller amount of assets and no real estate, a simple probate procedure is available in California. A simple probate process involves the filing of a last will and testament in the court in the county where the deceased person died or lived. With a simple estate, court hearings are usually unnecessary, at least until the work associated with the estate has been completed.
If an estate has a larger among in the way of assets or has real estate, a more formal probate process is utilized. This will require court hearings. For example, there can be court proceedings surrounding the sale of real estate.
Informational resources are presented here for you, materials covering the full spectrum of information associated with the probate process.
Importance of Estate Planning and Probate
The probate process becomes more manageable and easier to navigate when a person undertakes estate planning during the course of his or her life. Estate planning encompasses a variety of matters, issues that need to be addressed in a comprehensive and coordinated manner. Every individual has to embark on a specialized course of estate planning. By that it is meant that no two people have the exact same needs when it comes to estate planning.
Comprehensive estate planning potentially can involve:
- Writing a last will and testament
- Creating a trust
- Preparation of a durable power of attorney for health care
- Creation of a living will
The focus of comprehensive estate planning includes developing a strategy to lawfully avoid paying estate tax and inheritance taxes. It also involves crafting mechanisms, like a trust, to allow the probate process to be avoided completely when an individual dies.
Durable Power of Attorney for Healthcare and Living Will
Beyond drafting a will or establishing a trust, another crucial component of estate planning is the creation of a durable power of attorney for healthcare and an associated living will. California permits combining these two instruments into a solitary document.
A durable power of attorney for healthcare is a document that appoints a specific person to serve as what legally is known as your attorney-in-fact for the purposes of making medical decisions on your behalf when you cannot. In other words, if you were in an accident or experienced some sort of health or other type of issue that rendered it impossible for you to make decisions regarding your medical care on your own, the durable power of attorney takes effect. The individual you designate in that instrument is put into the legal decision to make medical care decisions on your behalf.
A living will is a related instrument, but has a different objective. A durable power of attorney for healthcare designates who will make medical treatment and care decisions for you. Meanwhile, a living will delineates the nature and extent of treatment and care you desire should you be unable to make such a decision yourself. A living will sets some parameters as to the types of extraordinary care that can be undertaken on your behalf, limiting the decision making ability of the medical attorney-in-fact at least to some degree.
You may also want to have a durable financial power of attorney drafted as part of your estate planning effort to designate a person to oversee your financial affairs should you reach a point at which you are unable to do so on your own. The same person can be appointed to assist both in your healthcare and financial powers of attorney. With that said, you certainly can choose different individuals to handle these two tasks. Indeed, different skillsets arguably are needed to address medical and healthcare versus financial matters and issues.
Funeral and Disposition of Remains
Finally, a key element of estate planning, which does come into play in probate as well, is your funeral wishes and the disposition of your remains. You can set out within your will, or in a separate document, your desires for your funeral and the disposition of your remains. As noted previously, the estate may end up responsible for paying the costs associated with your funeral and the disposition of your remains.
You definitely want to give serious consideration to hire a professional to assist you with estate planning. In addition, if you’re involved in what looks to be a more complicated estate, you also will want to consider retaining a probate attorney to assist you through the process.