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Dealing with the passing of a loved one can be very difficult.  It is sometimes challenging during this emotional time to determine whether a Probate proceeding is necessary.  The Probate process is designed to collect assets and distribute them pursuant to a Will.  The Probate process in the Courts is long and can be expensive.  Many people try to avoid using that process when distributing assets, if possible.  To determine whether a Probate is necessary, there are a series of questions you should ask about your loved ones’ estate.  Let’s take them in order.

1.  Did your loved one have assets valued at over $150,000.00?  In California, if the entirety of a person’s estate, including houses and cars, is less than $150,000.00, then you don’t need to do a probate at all.

2.  How are the accounts titled?  If the accounts are titled in the name of the loved one (i.e. “Joe Smith”), then a Probate could be necessary (pending the rest of these questions).  If they are titled in the name of a Trust (i.e. “Joe Smith, Trustee of the Joe Smith Trust”), then they would not be part of a Probate.  If there are Accounts titled in the name of the loved one that help push the Estate’s value over $150,000.00, then a Probate would be necessary.

3.  Are any accounts “Payable Upon Death”?  If accounts are payable upon death, then they would not be part of that $150,000.00 calculation.  Those accounts are distributed directly to the listed beneficiary.  All the beneficiary has to do is provide a Death Certificate and complete some bank paperwork.  

4.  Are there any accounts with joint owners?  If an Account is jointly owned and one owner passes away, then the assets in those accounts just become the living owners’ assets.  No further paperwork or effort is required by that living owner.  

5.  Are there any insurance policies with no stated beneficiary?  Insurance policies require a beneficiary.  However, sometimes people fail to include a stated beneficiary on their policies.  In those instances, the insurance proceeds are distributed to the Estate.  If the proceeds, coupled with other assets, are more than $150,000.00, then a Probate would be necessary.

There might be accounts with varying titles, meaning some are distributed through a Probate, while others are distributed in other ways. The easiest way to avoid the time and cost of a Probate is to establish a Trust and ensure all assets are placed into the Trust.  

Probate law can be complicated.  The Law Offices Of Matthew B. Talbot is here to help assist you during what can be a trying time.  Please call us at 925 322 1763 to set up a free 30 minute consultation.

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