What is probate? Probate is the judicial process by which a decedent’s non-exempt assets are distributed to creditors, heirs and devisees. Contrary to popular belief, probate is required for individuals who die with or without a will.
What assets are exempt from probate? Retirement accounts (IRAs and 401Ks), insurance policies, assets held in trust and assets jointly owned with a right of survivorship are all exempt from probate under California law. Smaller estates (under $150,000 in non-exempt assets) are exempt in their entirety.
Why have a will if all of my assets are exempt from probate? Even if all of your current assets are exempt from probate, it is still generally advisable to have a will. In the event that things change (e.g., you acquire new assets that are not covered by your trust documents), this will ensure that your assets are distributed according to your wishes instead of under California’s intestate succession laws. Miller Morton’s estate lawyers can help you plan for all possible contingencies.
What do we do if our loved one left two different wills? It is not uncommon for an individual to have multiple wills if he or she has made changes to the document over time. With appropriate planning, however, being able to identify the current version is not all that difficult. Nonetheless, if you find yourself in a situation with multiple competing wills, the first step in administering the decedent’s estate will be to determine which document should control. Sequence of events, the decedent’s mental capacity at various times, any other potentially superseding documents (such as amendments and revocable and irrevocable trusts), and the involvement of any individuals who may have engaged in improper conduct such as forgery or asserting undue influence will all factor into the legal analysis.