You Need to Be in the Know: Probate, Intestacy, Wills, and Trusts
| Publication year | 2017 |
| Author | By David Gibbs |
By David Gibbs
David Gibbs is the managing attorney for CGP Law Group, APC, located in the Bankers Hill neighborhood of San Diego, CA. CGP Law Group also has offices in the coastal community of Encinitas, CA. David focuses on estate planning, probate, and business/corporate transactional law. In 2014 he was named as one of San Diego's Best Young Attorney's and has twice been honored with the San Diego Business Journal's Best of the Bar award. David enjoys spending time outside and is an avid skier, mountain biker, surfer, and sailor. You can learn more about him at www.cgplawgroup.com.
If estate planning is not your primary area of practice, it is easy to forget what you learned in law school. Estate planning and probate attorneys frequently encounter misconceptions held by non-estate planning attorneys regarding differences between certain planning techniques. Misconceptions among both attorneys and clients can lead to improper planning, unnecessary expense and hassle, and even postponing planning altogether. Far too often, people do not get their estate plan in place because they do not understand the nuances between wills and trusts, and the ramifications of dying without either. Since estate planning impacts every client, it is useful to have the occasional refresher on the nuances between estate planning vehicles. After all, we cannot escape the inevitable.
It is worth beginning our discussion with a primer on the probate process. Probate is a legal proceeding used to close a person's legal and financial affairs after they pass away. California probate proceedings are filed in the Superior Court in the county in which the decedent lived. Probate, like any other court proceeding, is a public process. Thus, if an estate goes through the probate process, the world will know what was owned, what was owed, and who is to receive assets.
In general, all decedent's estates that have a gross fair market value over $150,000, must initiate a probate proceeding. To begin a probate proceeding, a Petition is filed with the Superior Court asking that the Petitioner be appointed to serve as either executor or administrator of the estate. Who files the Petition depends on many factors, but in general, it will come down to whether or not there was a Will. If there was a Will, the person(s) nominated in the Will may petition to be appointed executor. If there was no Will, or if the person nominated in the Will is unable or unwilling to serve, the State of California provides a list of people related to the decedent who have priority to serve as administrator...
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