Law Office of
Estate Planning and Probate
by Kirk Livermont
Estate planning is an
individual determining who will receive the benefit of their property
after death. There are many
tools available to implement an estate plan, some involve use of the court
system while others avoid court.
Probate is a process
using the court to implement the desires contained in an individual's last
will and testament. In addition to probate there are other simplified
court procedures to transfer property interests upon death, these include
small estates, under $100,000, and spousal property petition.
Probate and these
alternatives are also used when the individual dies without a will,
Holding title in joint
tenancy is the most common tool to avoid probate. This is because by operation of law upon the death of a joint
tenant the remaining joint tenant(s) receive that persons interest in the
property. This result cannot
be affected by either the court or the individual's last will and
In addition to joint
tenancy, some other methods to avoid probate are pay on death (POD)
clauses for financial accounts and the increasingly popular Living Trust.
development of an estate plan, one should understand what probate is,
including the procedure, time frames and costs.
Probate is in essence
the gathering of decedent's assets (creating a probate estate), payment of
decedent's debts and distributing the remaining assets to decedent's heirs
either identified in the will (testate) or by statute (intestate).
The detailed probate
procedure is :
Petition for Probate with the Superior Court in the county of residence or
where real property owned by decedent is located.
Notice of Petition in a newspaper of general circulation in that county.
Order for Probate at a court hearing, assuming no objection is raised.
required, obtain and file fiduciary bond with the court.
Letters Testamentary (testate) or Administration (intestate or
administrator not individual named in will).
notice of death to California Department of Health Services (MediCal
Creditor's Notice to all known and potential creditors of the decedent
which can be ascertained with reasonable effort.
federal tax identification number (the probate estate is a tax paying
9. Accept or
reject Creditor's Claims within 30 days of receipt.
and inventory decedent's assets.
11. Obtain an
appraisal of those assets from a probate referee.
12. File the
appraisal with the court.
sufficient assets to pay the costs of probate and the allowed creditors'
claims, which may be an involved process with several court appearances
depending on the type of property.
14. Pay the
allowed creditor claims.
MediCal clearance from California Department of Social Services.
and file an Final Accounting And Proposed Distribution.
The Final Accounting would be identification of assets at time of
death, details of sales of those assets and payments to creditors leaving
the remaining assets. The
Proposed Distribution would included proposed fees and costs of
administration and a proposed final distribution of the remaining assets.
Order Approving Final Accounting and Distribution during court hearing,
assuming no objection.
assets, withholding funds as a reserve for income taxes.
and file the appropriate tax returns along with tax payment.
any remaining funds in the reserve.
final discharge from court.
The final discharge
terminates the probate procedure.
The above description is
intended to provide an overview of the probate process.
There may be many additional steps depending upon the nature and
extent of property to be sold and divided as well as if property is owned
in another state.
A probate may extend
over several years, particularly if there is real property to be sold.
The shortesSeanda Daileyt length of time for a probate is six months.
This is one month for publication of Notice of Probate, four months
for creditors claims and one month to prepare and give notice of hearing
on final accounting.
This article is intended
to provide an insight into the probate process.
The next article will discuss the costs of probate and the other
two alternatives using the courts to distribute property, small estate and
spousal property petition.
Future articles will
cover the ramifications of how title is held to property, living trusts
and other estate planning issues.
Kirk Livermont is an
attorney with a private practice located in Independence, California
providing comprehensive estate planning services.
For questions and information about the
Office of Kirk K. Livermont send mail to