If you die without a will, your estate must go through probate and that can be a nightmare for your family! There are legal consequences when you die without a will such as who will inherit your property, what happens to minor children, and who will distribute your property.  However, even if you do have a will, the probate court will still oversee the payment of your debts and distribution of your property.

Please note that small estates in California (Under $150k) and estates passing entirely to a surviving spouse may avoid probate altogether.

There are several steps to the probate process. Before the proceedings can begin, the court must designate a personal representative.  If there was a will, the court will recognize the named executor as the personal representative.  This person will take possession of the estate property during the probate process.

Step 1 –  Filing the Petition:  The first step would be to file a petition with the California Superior court. This petition will cause the court to schedule a hearing.

Step 2 –  Handling the Notices:  After the petition is filed, a notice of hearing will be published in the local newspaper. Notices also to be given to anyone named in the will (if there was one), the legal heirs of the will, and any potential creditors.

Step 3 –  Proving the Will:  If there was a will, there is a process to prove its validity.

Step 4 –  Asset Collection:  The court will require an inventory of the estate property from the personal representative. Sometimes an appraisal of certain property will be required.

Step 5 – Payments to Creditors:  All of the debts of the estate will be paid before any distributions to the heirs can be made.

Step 6 – Estate Tax Payments:  The personal representative is responsible to pay all estate taxes before making distributions.

Step 7: – Conclusion of the Estate:  The personal representative provides for the court an accounting of all actions taken with regard to the estate. If there are no objections and the court approves the accounting, the personal representative can distribute the assets and pay any necessary fees.

The probate process is expensive and time-consuming. To avoid the probate courts entirely, you will need to use a living trust.  A living trust is a legal document that contains instructions for what you want to happen to your property after death.  But, unlike a will, a living trust can avoid the probate process.  While you are alive, you title your property and assets in the name of the trust.  You will still maintain control over all your trust assets during your lifetime.  After death, your property can be transferred to your designated beneficiaries in a timely manner without going through probate.

A living trust will save time, money, emotional trauma, and terrifying headaches for your family and those who assume control over your estate after you die. As always, please consult an estate planning attorney to determine the appropriate course of action in planning your own estate.