Can someone explain Probate to me(If I should die without a will) Concerning my home.?

Answer 1

There's a good answer to your question explaining Probate, but if you're thinking about creating a will, I would recommend creating a Living Trust instead:

According to Mr. Devore, it's important to first establish the difference between a Living Trust and a standard will. He explained that a will provides for distribution of one's assets at the time of death – and that's about it. A Living Trust, on the other hand, is effective immediately and is an efficient way to structure the management of one's assets in the event of incapacity, as well as their distribution at the time of death.

A Living Trust document begins with the naming of three parties. The first is the person(s) who owns the trust, known as the trustor(s). The second is the person named as the controller of the trust, or the trustee. The third is the recipient of the trust once the trustor passes away, also known as the beneficiary.

Devore explains that when a Living Trust is first executed, the trustor and the trustee is usually the same person. A successor trustee is also named within the trust document, and this individual will take over for the trustor in the event that he or she can no longer serve as the trustee (i.e., as a result of death or incapacity).

A Living Trust is "revocable and changeable" throughout one's life. The successor trustee, the plan of distribution, and the administrative provisions in the trust can all be changed by a trust amendment. When the trustor has minor children, he or she will often name a relative or trusted friend to serve as the successor trustee to manage the trust funds for the children until they become old enough to manage the trusts themselves. This way, if the worst case scenario were to occur, a worthy individual would be in charge of overseeing the trust until the children reached a proper age. Often times, as children grow older, the trustor will amend the trust and make a child the successor trustee.

Devore went on to say that Living Trusts also provide flexibility. For starters, almost everything from investments to physical property and heirlooms can be placed in a trust. One major exception is retirement accounts such as IRAs and 401Ks. For tax purposes, the government insists these types of accounts stay in the name of the person who owns them.

Another benefit of a living trust is that it can be drafted to influence a child's behavior. For example, parents of minors can stipulate how and when their children will receive money. Education is a very common reason for funds to be released. The trust could also stipulate that the grown child must be employed in order to benefit from the trust. Devore says, "The flexibility in this area is only limited by one's own creativity."

As for other benefits of a Living Trust, Devore points out, "It's the best way to avoid probate." If only a will is present, it generally must be adjudicated (settled) in probate court upon the person's death. This process can be very lengthy and very expensive, not to mention very public. The Living Trust, however, only appears in court if it's contested, if there is some ambiguity in the document, or if the trustee desires court approval in connection with the handling of the trust's affairs. Devore goes on to say, "If you own property in several states, a Living Trust is a must have", citing that each state will require a separate probate proceeding to clear title to the property in that state.

When drafted properly, a Living Trust can protect the beneficiary from lawsuits and divorce upon the trustor's death. Although it's not 100% impenetrable, Devore says a Living Trust makes it easier to fend off non-beneficiaries looking for money. He went on to say the only downside to Living Trusts is that they take time to set up and require some maintenance. For example, if a home held in the trust is refinanced, escrow will often times request that the property be taken out of the trust during the refinance. If the trustor does not make sure the house is put back into the trust, a probate will likely be required at the trustor's death. If new investments are made after the trust is established, the investment accounts must be titled in the name of the trust. These are the types of things which require due diligence on the part of the trustor.

If your assets are in excess of $100,000, or if you own a home in California (by virtue of its price tag), or if you have minor children, it makes a lot of sense to set up a Living Trust. Devore says that fees vary from state to state, but executing a trust through an estate planning attorney in California typically costs between $1,500- $4,000. This is far less than a probate hearing would be. He says, "Years ago, trusts were only for the rich. Now, they're for everybody." He added that although creating a trust does not require an attorney, it's definitely recommended. Devore calls doing it yourself, "The equivalent of doing surgery on yourself."

We asked Mr. Devore about some common mistakes people make when setting up a trust, and he listed two. First is the lack of maintenance regarding assets not contained in the trust. He says for investments such as 401Ks and IRAs, it's important to periodically revisit the beneficiary situation. He also recommends that the trust be structured so that the trust continues after the death of the trustor in order to provide the beneficiaries with creditor protection and estate tax advantages.

Devore's last bit of advice? He suggests that when you set up a trust, make sure that the trustee is aware of their newfound responsibility. He says outlining every detail is not nearly as important as informing them that they've been named and what to do in the event of your demise. He says if you have minor children, you may want to go into greater detail about how you'd like them raised. By taking the time to address these issues now, you'll obtain peace of mind and ensure the financial well-being of your loved ones down the road.

Ken Devore has practiced law for 11 years, focusing on estate planning for the last decade. He holds a BA in Psychology from the University of California at San Diego and an LL.M. in Tax, as well as a law degree from Golden Gate University. He is a certified specialist by the California Bar in Estate Planning, Trust and Probate law. He has also served as chair of the State Bar's Estate and Gift Tax Committee of the California Tax Section.

Answer 2

Probate is the process of clearing the debts of your estate and dividing up the remainder among your heirs. It applies whether you have a will or not.

A will simply advises the administrator of your estate and the courts how you want your estate divided upon your death. It also serves as notice as to who you want to administer your estate, whether or not your administrator needs to post a surety bond, and a few other items depending upon your state of legal residence.

If you die without a will, you are considered intestate. In that case, the courts alone will decide how your estate will be divided, usually according to state law in your state of legal residence or possibly in the state where you actually die. It doesn't matter what you might have wanted or any oral bequests that you may have made, the law alone will decide. Each state has its own laws and they vary widely from state to state.

For obvious reasons you should have a will so that your wishes will be honored. But whether you have a will or not, your estate will probably pass through probate unless all of your assets have been transferred to a trust. In that case, the trust will determine how things are handled.

Answer 3

Your assets go into probate to be held until the proper beneficiary can be located and verified. The line of priority for a beneficiary is:

1. Spouse
2. Children
3. Parents
4. Siblings
5. All other blood relatives

Answer 4

If you own your home jointly, it is not touched by probate. The surviving joint owner maintains title to the property. Otherwise, you are dead so what do you care?