You may have heard the terms “probate” and “estate planning” floating around, but what exactly do they mean? Better yet, is there a difference? Yes, there is. Worry not; Broaden Law LLP is here to get you up to speed. Continue reading to find out more about what these terms really mean.
In general, probate refers to “probate court” where, among other things, the court transfers property left behind to the deceased person’s heirs or beneficiaries (if there is a will). “Probate assets” means property that falls under the jurisdiction of the probate court. A “non-probate asset” is property held in a trust or that has a beneficiary designation specific to the asset (think life insurance, retirement accounts, and ‘pay on death’ accounts).
A person’s last will and testament must be deposited with the probate court clerk within 30 days of the person’s death. However, no court proceedings are necessary unless there is a will contest or enough probate assets to require court supervision. Under California law, a will is valid if it is written in the person’s own handwriting, or if it is signed in the presence of two witnesses who sign a sworn affidavit.
You will often hear lawyers advise you to avoid probate court by making an “estate plan.” Probate court proceedings can be emotionally difficult for the average person mourning the death of a loved one. Many people aren’t familiar with court procedures and paperwork, so lawyers are indispensable to the probate court process.
An estate planning lawyer works with clients to ensure an efficient and straightforward process for transferring property after death and also managing personal affairs if a person becomes incapacitated or unable to care for himself or herself independently. A living trust is a common estate planning tool because it provides comprehensive instructions for distributing property after a person’s death. In California, a will doesn’t avoid probate and mainly serves to designate an Executor of the person’s estate and a Guardian for minor children.
All the laws and regulations pertaining to the transfer of property can only be understood and applied with the assistance of a lawyer knowledgeable in California law. It’s not something that a blank form you download from a website for do-it-yourselfers can accomplish for you. It may even do more harm than good.
Your estate consists of everything you own, including your debts. Most people, especially those who have families, will want to have some say in how those assets are divided after they pass away. You should specify who receives what and when they do so. The family will be taken care of and, perhaps more importantly during a time of loss, will feel taken care of if you implement this plan with the assistance of a lawyer. Your lawyer can also estimate taxes due on the estate, fees owed for processing the estate, and any legal fees you may owe.
Planning ahead for your estate can ensure that your wishes are carried out in other situations. When preparing for an uncertain future, our health is the concern we have the most. An estate plan may include instructions on the type of medical care you want to receive in the event of your disability or incapacity. An Advance Health Care Directive states whether you want to be kept on life support or whether or not you want someone to try to revive you if you pass away.
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Naima B. Solomon has been practicing law for a decade as a partner and co-founder of Broaden Law LLP in Chula Vista, California. Broaden Law represents and assists clients in matters concerning estate planning, probate administration, family law probate, real estate law, bankruptcy law, and business law. If you are looking for a lawyer in probate or estate planning, we highly recommend chatting with Naima!
The task of planning for your future after you are gone is not an easy one, nor is it one that anyone looks forward to. Having an attorney, such as Naima B. Soloman—-a probate lawyer at Broaden Law LLP—can help. To assist in planning for your future, contact us today and schedule a consultation.