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Northern California Center for Estate Planning and Elder Law

What to Do When a Loved One Dies

By Timothy P. Murphy Estate Planning Attorney www.norcalplanners.com

Helping our clients toCopyright build,2013 preserve pass on their www.norcalplanners.c legacies. 1 Timothy P. and Murphy


Losing a loved one is an emotionally charged period of time when most people are not thinking clearly.

It may seem impossible, in the midst of all that grief, to think about the legal ramifications of your loved one’s death; however, someone does have to do it. If you are the person who was appointed or who has volunteered for the position, a basic understanding of the California probate process may help get you started. Of course each estate is unique, meaning that no two probate processes are the same; however, the following steps apply to most estates.

Locating the Last Will and Testament The first step that should be taken after the death of a spouse or close family member is to locate an original Last Will and Testament, if one exists, as well as any Each state is unique,

other relevant estate planning documents.

meaning that no two

Checking through personal files of the deceased, asking

probate processes are the same, however a few basic steps apply to most estates.

relatives, and inquiring with the decedent’s attorney should turn up a Will if one exists. The original Will needs to be lodged with the appropriate court to probate the estate. Other estate planning documents may help determine if probate is necessary.

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Copyright 2013 Timothy P. Murphy

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Testate vs. Intestate When a valid Last Will and Testament was left behind, the decedent is said to have died “testate.” An “intestate” decedent is someone who died without leaving behind a valid Will. When a valid Will exists, the terms of the Will decide how estate assets are to be distributed in most cases. When no Will was left behind, the state intestacy laws will decide how assets are distributed. California intestacy laws are complicated; however, the following illustrates the general order of property distribution in an intestate estate: An “intestate” decedent is someone who died without leaving behind a valid Will. When no Will was left behind, the state intestacy laws will decide how assets are distributed.

1. Spouse/registered domestic partner 2. Descendants (children, grandchildren etc.) 3. Parents 4. Siblings 5. Grandparents The actual order depends on whether the decedent’s property was community property or separate property. Before a court can determine what percentage an heir will receive in an intestate estate, the court will first have to legally determine who the heirs of the estate are through the probate proceeding. It is also possible for an estate to have both testate and intestate assets. If a valid Will, or other estate planning document, fails to provide for the distribution of an asset, then that asset is considered an intestate asset and will pass through the laws of intestacy.

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Copyright 2013 Timothy P. Murphy

www.norcalplanners.com


Not all estates require formal probate and not all estate assets are included in a formal probate when one is required.

What Every Senior Should Know About Probate Want to see two groups who make the Republicans and Democrats look like one big, happy family? Then put into one room those attorneys who believe in probate and those who prefer their clients manage their affairs with a Revocable Living Trust. You’ll get as contentious an assembly as you could possibly hope for. For seniors, the debate has special meaning because the vast majority of probate cases revolve around the affairs of those Americans age 60 and over. This report from the American Academy of Estate Planning Attorneys explores the reasons for the debate and offers guidelines to help seniors steer clear of the fray. This Report is Compliments of Northern California Center for Estate Planning and Elder Law. If you would like a hardcopy of this report please email info@norcalplanners.com or call (916) 437-3500.

Formal Probate vs. Simplified Procedures Not all estates require formal probate and not all estate assets are included in a formal probate when one is required. Factors such as the value of estate property, the type of property, the manner in which assets are titled, and who is claiming the estate assets will decide whether a simplified procedure is available. Assets such as life insurance or retirement account proceeds will distribute directly to the beneficiary without going through probate. Real property and bank accounts that are properly jointly titled may also pass without the need to go through probate. Under California probate laws, real and personal property worth under $150,000 may also qualify for a simplified procedure; however, this still may require the appropriate forms to be filed with the probate court.

Executor vs. Administrator When formal probate is required, someone must oversee and administer the process. If a Last Will and Testament was left behind, an executor should have been named in the Will to fill this position. When a Will was not left behind, someone must step forward to fill the position. Typically, this is a spouse/domestic partner, parent, or

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adult child. In either case, the court must officially approve the petition and appoint the executor or administrator.

In order to begin the probate process, the person named as executor under the terms of the Will, or the person who wishes to become the administrator, must file the appropriate petition in the probate court asking the court to open the probate and to officially appoint him or her as executor/administrator.

The Role of Executor/Administrator The executor/administrator has numerous duties throughout the probate process. The more complicated the estate is the more complicated the job of executor/administrator will be. Most executors/administrators retain the services of an experienced and qualified estate planning attorney to assist during the probate process. In order to begin the probate process, the person named as executor under the terms of the Will, or the person who wishes to become the administrator, must file the appropriate petition in the probate

Taking the “Problem� Out of Probate is perhaps one of the most comprehensive guides on the probate process available and you can get your copy absolutely free!

court asking the court to open the probate and to officially appoint him or her as executor/administrator. After filing the appropriate documents to open the probate estate, the executor/administrator must inventory the decedent’s estate and value each asset. The inventory is then filed with the probate court for review.

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Creditors of the estate must also be notified of the probate. Public notice is also required through publication in a local newspaper. Creditors are then allowed a specific amount of time to file a claim against the estate. These claims are If there is a dispute about a creditor’s claim against the estate, the dispute is

reviewed and approved or denied by the executor/administrator. If there is a dispute about a claim, the dispute is litigated in court. All approved claims are then paid out of available estate assets. Personal income taxes

litigated in court.

and estate taxes are also paid out of estate assets.

Challenges to a Will When a potential heir, or known beneficiary, believes that a Will admitted to probate is not a valid Will, a Will contest may be filed. Despite popular belief, a Will contest cannot be filed simply on the basis that someone is not happy with his or her gift, or lack thereof, under the Will. In California, the grounds on which a Will may be contested include:  Mental incapacity  Undue influence  Fraud or mistake A Will contest cannot be filed simply on the basis that someone is not happy

 Revocation or existence of later executed Will  Failure to meet formalities (technical deficiencies)

with his or her gift, or lack

If a Will contest is filed, the executor/administrator has a

thereof, under the Will.

legal duty to defend the Will that has been admitted to probate. A Will contest can take months, even years, to resolve. For the most part, distribution of estate assets cannot occur until a resolution has been reached regarding the Will contest or the issue has been fully litigated in court.

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Copyright 2013 Timothy P. Murphy

www.norcalplanners.com


About the Author

Distributing Property When all estate assets have been inventoried and valued, all creditors paid, and all challenges to the Will have been resolved, only then can the executor/administrator normally begin to distribute the remaining property to the beneficiaries or heirs to the estate.

Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes. Mr. Murphy also assists families facing the myriad of problems associated with dealing with a loved one’s declining health and rising needs for care. He has practiced law in the Sacramento area for 29 years, first with a large firm, and then with his own firm since 1987.

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Copyright 2013 Timothy P. Murphy

www.norcalplanners.com


Probating an Estate in California: What to Do When a Loved One Dies