Probate court has become a dreaded phrase, and by word of mouth, people have been warning their friends and family to avoid it at all costs. You can search the internet and see many articles and horror stories about doing whatever you can to avoid probate court. Probate is a legal process that happens when a person dies in possession of property. The procedure determines the next right of ownership for estates.
CA Probate Code Division 6, Part 2, 6400:
a) As to community property, the intestate share of the surviving spouse is one-half of the community property that belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of the surviving spouse is one-half of the quasi-community property that belongs to the decedent under Section 101.
(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one deceased child.
(B) Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or more deceased children.
(C) Where the decedent leaves the issue of two or more deceased children.
(Amended by Stats. 2014, Ch. 913, Sec. 32. (AB 2747) Effective January 1, 2015.)
How Do Estates End Up in Probate Court?
If there is a will at the time of death and it is filed, then the estate's executor will be sworn in. Notices will be made to those with interest in the estate. During this period, those who receive notice regarding the estate can wait for more information, contest the will, or make a claim against the estate, for instance, if you’re a creditor. Once a will has been filed, that doesn’t mean that it’s going to be accepted.
There are grounds where a will can be contested, like:
- Undue Influence: The decedent signed a will because of an inability to protect their interest from outside influence. This usually happens when a susceptible person is pressured to sign a will or make changes to a will. The court intervenes if there is reason to believe the changes do not reflect the decedent's wishes and are the result of undue influence.
- Improperly Executed: The decedent didn’t have a valid will that met all the qualifications to be executable. A will can be improperly executed if there aren’t enough witnesses or there are problems with a witness. For example, if a witness is not old enough to witness a legal document, it can be voided.
If a person dies without a will or if the will was declared invalid, the probate court will process the property to the next rightful owners. A decedent without a will is said to have died intestate, and their estate will be executed by state statute. The only property that the intestacy statute will process are assets owned solely by the decedent.
Common misconceptions about probate include:
- Property jointly owned by a surviving spouse will pass directly to the surviving spouse without incident.
- Dying without a will doesn’t mean your property will automatically go to the state.
- There is a misconception that the surviving spouse automatically inherits everything, but this is not true if the decedent has children.
Why Do People Think Probate is Terrible?
Probate is a straightforward and streamlined legal process, but it’s dreaded because it’s considered expensive. Everyone wants to avoid paying fees. The fees associate with probate are for services rendered, so all attorneys, accountants, and administrators are compensated. If you think your will may not stand up in court or you’ve yet to create an estate plan, contact Palmer Rodak & Associates. Our attorneys can help you evaluate the quality of your existing will. We can also help you create an entire estate plan. Contact us today at (760) 573-2223 to get started.