Probate

What is Probate?

 

Probate is a process where, depending on the size of your estate, a judge in Probate Court will decide who inherits your assets.  This is a lengthy, time-consuming, and very expensive process.  If you do not have a Will, the judge will distribute your assets pursuant to the laws of Intestacy.  What this means is your spouse, then children will receive your assets.  If you do not have children, the Court looks to the following list of family members:  your parents, siblings, nieces and nephews, and so on.  You can override the state of California’s Intestacy Laws with a Will or a Trust.

 

What is an Estate?

 

An estate is what you leave behind when you pass away if you do not have a trust or beneficiaries on your account.  People confuse the term estate with everything you leave behind.  This is not so, in fact, someone can pass away with millions of dollars and still not leave an estate. If you do leave an estate when you pass, the State of California has Intestacy Laws that dictate where your assets go. 

 

What is a Will?

 

A Will, or Last Will and Testament, is a document you sign that states where you want your assets to go when you pass away, who is going to care for your minor children, and directs the disposition of your remains (meaning cremation or burial).  A Will does not avoid Probate. This is one of the biggest misconceptions out there.  If you have a home and only have a Will then your estate will go through Probate.  

 

A Will however is still a document you need.  When coupled with a Living Trust, a Will becomes what is known as a "Pour-Over Will."  

 

The most important thing a Will does is name a guardian for your minor children.  Without a Will, it will be up to your parents, siblings, and your in-laws to fight over custody of your minor children. 

 

What is an Executor?

 

An Executor is the person you name to be in charge of your Estate after you pass away.  They are nominated in your Will or Pour-Over Will.  Your Executor has many important duties including paying for your final expenses, debts, inventorying your assets, and distributing your Estate. 

 

What is a Pour-Over Will?

 

A Pour-Over Will is a legal document that accompanies with a Trust.  If you have an asset that is not funded in your Trust when you pass away, your Pour-Over Will takes that asset and moves, or "pours-over," that asset into your Trust so that the terms of the Trust can control that asset.