Sherina So King Li, JD, Certified Public Accountant
IRS AUTHORIZED E-FILE PROVIDER
BILINGUAL ENGLISH/CHINESE (CANTONESE & MANDARIN)
 
 


 
 
 

  Probate  
     
     
  What is probate?

Probate is a legal process that takes place after someone dies. It includes:

  • Proving in court that a deceased person's will is valid (usually a routine matter)
  • Identifying and inventorying the deceased person's property
  • Having the property appraised
  • Paying debts and taxes
  • Distributing the remaining property according to the terms of the will (or state law, if there's no will)

Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property.

 

DOES EVERYTHING HAVE TO GO THROUGH PROBATE?

No! Many assets do not go through probate, including assets held in joint tenancy, assets that have named beneficiaries, and assets held in living trusts. Small estates may avoid probate, and estates passing entirely to a surviving spouse may avoid probate.

Assets that are held in joint tenancy titling – Joint Tenants,” “Joint Tenants With Right of Survivorship,” “JT TEN”, or “JTWROS” – will not go through probate, so long as there is one joint tenant still living. Title passes entirely to the surviving joint tenant, although some paperwork may be necessary to document the change.

Assets payable to a surviving named beneficiary will avoid probate. Examples include life insurance proceeds, annuities, IRAs and most other retirement plans that provide for beneficiary designations. Even U.S. savings bonds allow the owner to name a designated beneficiary. The designated beneficiary must be a living person; otherwise the asset still may be subject to probate. If you name “my estate” or “the estate” as your beneficiary on such assets, this will subject the asset to probate

Assets held in the form of a “pay on death” (P.O.D.) or “transfer on death” (T.O.D.) account will pass to the person named to receive that account upon the death of the account owner. Most banks and many mutual funds and brokerage accounts can be set up with a P.O.D. or T.O.D. beneficiary designation. So long as the named beneficiary survives the account owner, this arrangement will eliminate the need to probate the account. Another variation of this is the “in trust for” (ITF) account.

Assets held in living trusts will avoid probate. Living trusts may be revocable during the lifetime of the creator of the trust, or they may be irrevocable, depending on the purpose for which they are created. Either way, the assets in such trusts pass to the trust beneficiaries according to the terms of the trust and are not subject to probate proceedings. If one has a living trust, but some assets are not in the trust at the time of death, those non-trust assets may have to go through probate in order to get put into the trust.

 
 

To set up an appointment, contact Sherina Li, Attorney at Law, at 510-909-1904 or li.sherina@gmail.com