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ARTICLE 1:
WHAT IS PROBATE IN CALIFORNIA?
California Probate
Probate is the legal process of transferring a decedent's
estate to the rightful heirs of the estate. The probate process
involves (1) collecting and identifying the deceased person's
property, (2) paying any debts and taxes, and (3)
identifying the proper heirs and distributing the estate property
to them. While the court oversees this process, in most cases
the work is done by the executor or the administrator of the decedent's
estate with the help of an attorney.
If a person is named as the executor of the estate
in the decedent's will, a court hearing to establish the validity
of the will must be held before he or she can legally act on behalf
of the estate. If there is no will and a person wants to act as
the administrator of the estate, he or she must apply to the court
and be confirmed before taking any action in connection with the
estate. Anyone taking actions involving the estate before formal
appointment by the court may be personally liable for those acts.
Generally, the rules regarding probate are found
in the California Probate Code, the local rules for each superior
court in the State of California and various tax codes and regulations.
Each task in the probate process must be performed in accordance
with the requirements of California law and the various tax rules.
Property Not Subject to California Probate
In many cases, the decedent's estate consists of
at least some property that is not subject to probate. Life insurance,
for example, usually passes directly to the named beneficiary
without court confirmation. Property held in joint tenancy may
also pass directly to the surviving joint tenant. Similarly, if
the deceased person had created a "living trust," assets held
in the trust are usually not subject to probate. A bank account
may also designate a death beneficiary. (These examples assume
that there is no dispute over the named beneficiary or the manner
in which title is held. If there is a dispute and a civil action
is filed by an individual, the court will determine the rightful
owner of the property.)
Summary Proceedings
In certain circumstances, some or all of the decedent's
property may qualify for a "summary probate" or "set-aside proceeding."
These procedures are less complicated alternatives to a formal
probate.
For example, if all of the decedent's property goes
to the surviving spouse, a summary probate proceeding can be used
where a "spousal property petition" is filed with the court seeking
court confirmation that the surviving spouse owns the property.
This proceeding can take as little as 30 days. In other cases,
if the total value of a deceased person's property otherwise subject
to probate is less than $100,000, an affidavit procedure may be
used to transfer personal property, and the transfer of real property
can be confirmed through a relatively simple proceeding.
While these procedures avoid the court proceedings
of a full probate, this does not mean that the estate will avoid
federal estate tax, income tax, or inheritance taxes. And, even
if these methods are used, the decedent's debts must still be
paid. Finally, even if a summary proceeding is available, there
may be important reasons for deciding to proceed with a formal
probate instead of electing a summary proceeding or a set-aside
proceeding. (See Benefits of Probate below.)
In all cases, you should consult with an attorney before you take
any steps to transfer a decedent's property without a court proceeding.
If There is No Will in California
In many instances, a person dies without leaving
a will. When this occurs, the decedent is said to have died "intestate"
and the heirs to the estate are determined by California's laws
of intestacy. The laws of intestate succession determine how the
estate will be divided based on a person's relationship to the
decedent, e.g., surviving spouse, children, other descendants,
etc. Probate will still be required unless specific property of
the estate is not subject to probate, such as life insurance,
etc., or a summary procedure is available. If the deceased person
did not leave a will and a formal probate is required because
of the nature and size of the assets, the court will appoint an
administrator to handle the probate proceeding. In most cases,
the court will appoint the decedent's closest relative to act
as the administrator.
Benefits of California Probate
Despite the negative image of probate, probate proceedings
do provide some important benefits. There are some situations
where, although formal probate is not required, it may nevertheless
be advisable to elect to proceed with probate. In many cases,
there are tax advantages to receiving property through probate
as opposed to being received by way of joint tenancy or a gift
made prior to death. Property obtained through probate almost
always receives a "step-up" in the tax basis to the date of death
value. This often results in a substantial capital gains tax savings
on the sale of the property. Further, if there are creditors'
claims against the estate, it may be beneficial to have probate
court supervision so that the validity and amount of the claims
can be determined. Probate also bars creditor's claims if they
are not asserted during the "creditor's claims period" (generally
four months after the executor or administrator is appointed).
In addition, probate provides court supervision which ensures
that the decedent's property will be accounted for and distributed
in accordance with the decedent's intent. Court supervision can
also be helpful when the family members or the beneficiaries have
difficulty getting along.
Further, the "delays" associated with probate are
generally not a significant problem. Family members usually have
prompt access to joint back accounts and insurance proceeds. And,
where special needs exist, the probate court will allow for preliminary
distributions or a family allowance. Formal probate usually only
takes six months to a year to complete.
In sum, even where probate is not required, you
should consult with an attorney to consider these and other factors
in deciding how best to proceed in handling the estate.
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Our firm's practice is to charge a
reasonable hourly rate for the hours that we spend on
the case which, in most cases, is less than the statutory
fee.
If you are interested in hiring our
firm to handle a probate or trust matter in California.
Please call Tracy Murphy at (949)916-6020
to set up a FREE initial consultation.
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Probate,
Trusts, Wills, and Estate Planning Attorney
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Servicing
Orange County, Irvine, Laguna Woods, Leisure World, Seal
Beach, Laguna Beach, Laguna Hills, Lake Forest, Mission
Viejo, Laguna Niguel, Aliso Viejo, Coto De Caza, San Clemente,
Newport Beach, Huntington Beach
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 Orange
County's friendly and caring estate planning law office.
The Law Office of Tracy Murphy is located in the city of
Irvine, in Orange County, California. Tracy Murphy represents
individuals, families, and small business owners in estate planning,
business planning, and tax planning. Tracy Murphy is a knowledgeable
estate planning attorney who understands the value of establishing
trustworthy, long-term relationships with each client. Clients
appreciate the availability of house calls and hospital visits
at no additional cost.
Tracy
Murphy, Attorney At Law sets the highest standards
in Custom Estate Planning, dedicated to today's needs and tomorrow's
realities. Thorough and thoughtful evaluation of your needs guarantees
the optimum solution for your circumstances - no matter how simple
or complex.
Your
attorney should be your advocate. I will help you
plan one of the most important aspects of your future - your legacy.
With information assembled in one-on-one meetings, we will personalize
a trust that will put a legal frame to your needs and anchor your
financial legacy.
Together
we will set objectives, address concerns
and custom-build an Estate Plan tailored to reflect
your needs, lifestyle and goals. Caring continuing attention to
the administration of your estate offers comfort to loved ones
and helps avoid unnecessary family hardship.
 "I
believe the most important estate planning objectives are protecting
what you have earned, and planning to provide for your loved ones"
- Tracy Murphy.
ABOUT ORANGE COUNTY WHERE THE MAJORITY OF OUR CLIENTS ARE:
Orange County is a county in Southern California, United States.
Its county seat is Santa Ana. According to the 2000 Census, its
population was 2,846,289, making it the second most populous county
in the state of California, and the fifth most populous in the
United States. The state of California estimates its population
as of 2007 to be 3,098,121 people, dropping its rank to third,
behind San Diego County. Thirty-four incorporated cities are located
in Orange County; the newest is Aliso Viejo.
Unlike many other large centers of population in the United States,
Orange County uses its county name as its source of identification
whereas other places in the country are identified by the large
city that is closest to them. This is because there is no defined
center to Orange County like there is in other areas which have
one distinct large city. Five Orange County cities have populations
exceeding 170,000 while no cities in the county have populations
surpassing 360,000. Seven of these cities are among the 200 largest
cities in the United States.
Orange County is also famous as a tourist destination, as the
county is home to such attractions as Disneyland and Knott's Berry
Farm, as well as sandy beaches for swimming and surfing, yacht
harbors for sailing and pleasure boating, and extensive area devoted
to parks and open space for golf, tennis, hiking, kayaking, cycling,
skateboarding, and other outdoor recreation. It is at the center
of Southern California's Tech Coast, with Irvine being the primary
business hub.
The average price of a home in Orange County is $541,000. Orange
County is the home of a vast number of major industries and service
organizations. As an integral part of the second largest market
in America, this highly diversified region has become a Mecca
for talented individuals in virtually every field imaginable.
Indeed the colorful pageant of human history continues to unfold
here; for perhaps in no other place on earth is there an environment
more conducive to innovative thinking, creativity and growth than
this exciting, sun bathed valley stretching between the mountains
and the sea in Orange County.
Orange County was Created March 11 1889, from part of Los Angeles
County, and, according to tradition, so named because of the flourishing
orange culture. Orange, however, was and is a commonplace name
in the United States, used originally in honor of the Prince of
Orange, son-in-law of King George II of England.
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Incorporated:
March 11, 1889
Legislative Districts:
* Congressional: 38th-40th, 42nd & 43
* California Senate: 31st-33rd, 35th & 37
* California Assembly: 58th, 64th, 67th, 69th, 72nd &
74
County Seat: Santa Ana
County Information:
Robert E. Thomas Hall of Administration
10 Civic Center Plaza, 3rd Floor, Santa Ana 92701
Telephone: (714)834-2345 Fax: (714)834-3098
County Government Website: http://www.oc.ca.gov |
CITIES OF ORANGE COUNTY CALIFORNIA:
City
of Aliso Viejo,
92653, 92656, 92698
City of Anaheim, 92801,
92802, 92803, 92804, 92805, 92806, 92807, 92808, 92809,
92812, 92814, 92815, 92816, 92817, 92825, 92850, 92899
City of Brea, 92821,
92822, 92823
City of Buena Park,
90620, 90621, 90622, 90623, 90624
City of Costa
Mesa, 92626, 92627, 92628
City of Cypress,
90630
City of Dana Point,
92624, 92629
City of Fountain
Valley, 92708, 92728
City of Fullerton,
92831, 92832, 92833, 92834, 92835, 92836, 92837, 92838
City of Garden
Grove, 92840, 92841, 92842, 92843, 92844, 92845, 92846
City of
Huntington Beach, 92605, 92615, 92646, 92647, 92648,
92649
City of Irvine,
92602, 92603, 92604, 92606, 92612, 92614, 92616, 92618,
92619, 92620, 92623, 92650, 92697, 92709, 92710
City of La Habra,
90631, 90632, 90633
City of La Palma,
90623
City of Laguna
Beach, 92607, 92637, 92651, 92652, 92653, 92654, 92656,
92677, 92698
City of Laguna
Hills, 92637, 92653, 92654, 92656
City of Laguna
Niguel, 92607, 92677
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City
of Laguna Woods,
92653, 92654
City of Lake Forest,
92609, 92630, 92610
City of Los
Alamitos, 90720, 90721
City of Mission
Viejo, 92675, 92690, 92691, 92692, 92694
City of Newport
Beach, 92657, 92658, 92659, 92660, 92661, 92662, 92663
City of Orange,
92856, 92857, 92859, 92861, 92862, 92863, 92864, 92865,
92866, 92867, 92868, 92869
City of Placentia,
92870, 92871
City of Rancho Santa
Margarita, 92688, 92679
City of San Clemente,
92672, 92673, 92674
City of San
Juan Capistrano, 92675, 92690, 92691, 92692, 92693,
92694
City of Santa Ana,
92701, 92702, 92703, 92704, 92705, 92706, 92707, 92708,
92711, 92712, 92725, 92728, 92735, 92799
City of Seal Beach,
90740
City of Stanton,
90680
City of Tustin, 92780,
92781, 92782
City of Villa Park,
92861, 92867
City of Westminster,
92683, 92684, 92685
City of Yorba
Linda, 92885, 92886, 92887
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Noteworthy
communities Some of the communities that exist within city
limits are listed below:
* Anaheim Hills, Anaheim * Balboa Island, Newport Beach
* Corona del Mar, Newport Beach * Crystal Cove/Pelican Hill,
Newport Beach * Capistrano Beach, Dana Point * El Modena,
Orange * French Park, Santa Ana * Floral Park, Santa Ana
* Foothill Ranch, Lake Forest * Monarch Beach, Dana Point
* Nellie Gail, Laguna Hills * Northwood, Irvine * Woodbridge,
Irvine * Newport Coast, Newport Beach * Olive, Orange *
Portola Hills, Lake Forest * San Joaquin Hills, Laguna Niguel
* San Joaquin Hills, Newport Beach * Santa Ana Heights,
Newport Beach * Tustin Ranch, Tustin * Talega, San Clemente
* West Garden Grove, Garden Grove * Yorba Hills, Yorba Linda
* Mesa Verde, Costa Mesa
Unincorporated communities These communities are outside
of the city limits in unincorporated county territory:
* Coto de Caza * El Modena * Ladera Ranch * Las Flores *
Midway City * Orange Park Acres * Rossmoor * Silverado Canyon
* Sunset Beach * Surfside * Trabuco Canyon * Tustin Foothills
Adjacent counties to Orange County Are: * Los Angeles
County, California - north, west * San Bernardino County,
California - northeast * Riverside County, California -
east * San Diego County, California - southeast
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