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Horizon Elder Law & Estate Planning Blog

Monday, October 14, 2019

Can Your Parent’s Estate Go to Probate?

The death of a parent is never easy. Not only are you left to deal with the highly emotional toll that such a loss can take, but also you are left to deal with their estate. And while you want to do right by them, it can get pretty confusing quite quickly. This is especially true if it goes to probate.

Probate is the settling of an individual’s estate by a court-appointed executor. Probate can often involve a lot of time and even more money. While it can be simpler if the estate fits within a certain tax bracket, if it does not it can complicate the process, sometimes causing it to go on for years. 

Can You Avoid Probate?

It is actually possible to completely avoid probate if the executor is able to demonstrate that all debts have been paid off by the value of the estate and no significant debts remain. In such cases, the court often chooses to settle the estate, sometimes utilizing an affidavit. 

When the individual who passes away does not have a will, a clear legal estate plan, or Medicaid, it is likely that the probate process will be deemed as necessary. 

How Long Is the Probate Process?

One of the problems with the probate process is that it can take a reasonably long time to complete regardless of whether or not the decedent had a Will. This generally means several months, though depending upon the specifics of each case, it could last longer. 

What Is the Probate Process?

Typically the probate process starts with an individual (the executor, widow/er, family lawyer, etc.) filing the Will with a probate court. This can also be joined with the filing of a death certificate.

After the Will has been filed with the probate court, the following steps typically take place. 

A hearing is held at which a judge finds whether or not the will is valid. If there is no will, the heirs of the estate may receive a summons to attend the hearing. It is during this hearing that heirs can voice their concerns regarding the estate.

An executor is appointed. A judge then chooses the individual designated in the will, a legal heir or a surviving spouse, though anyone may choose to decline the position. Both the heirs as well as the appointed executor will sign documents to make their positions official. 

After the positions have been confirmed, the executor is responsible for ensuring that creditors have been notified of the individual’s death. He or she will also prepare tax returns for the deceased. Additionally, the executor will confirm as to whether there are any other undocumented debts. 

Once all debts have been paid, the executor then files the appropriate paperwork and starts to distribute assets to entitled beneficiaries. However, if there is no will, the court will decide who the appropriate heirs should be. 

Once the first four steps have been met, only then can the estate be settled. 

Horizon Elder Law & Estate Planning, Inc. Helps Those in California Who Are Dealing with the Probate Process

Though not always straightforward, once the probate process is completed and understood, it can help to ease any tension, fears and uncertainty often associate with it. The relevant laws serve to protect the estate and everyone involved. Sometimes the most important thing that you can do is simply to remain patient – and call an experienced attorney.

At Horizon Elder Law & Estate Planning, Inc., we understand the importance of estate planning and having a will. We also understand the frustration surrounding the probate process and are here to help you and your family to fight for what you want and deserve. To learn more or to schedule a consultation, contact us today!

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