CALIFORNIA PROBATE

While the word “probate” may make a lot of folks cringe, it’s not the end of the world. In California, there are many different “types” of probate. The following are a few of the types of "formal” (read: longer) California probate processes:

• Petition for Probate of Will and for Letters Testamentary

• Petition for Probate of Will and for Letters of Administration with Will Annexed

• Petition for Letters of Administration

• Petition for Letters of Special Administration

Streamlined, “informal,” often quicker types of probate processes in California include the following:

• Section 13100 Affidavit for Collection of Personal Property (Small Estate Affidavit)

• Spousal Property Petition

• Heggstad Petition

• Affidavit Re Real Property of Small Value

• Petition to Determine Succession to Real Property

Probate can be defined as the court process of ensuring that the right people (heirs or beneficiaries) inherit the decedent’s property, in the right amounts, either under the terms of a Will (a “testate” estate) or, if the court finds that that a Will is invalid or that there is no Will, under California intestacy law (an “intestate” estate). In formal probates, a “personal representative” (PR), or executor, will be appointed to marshal the probate assets, file any required inventory and accounting, and deal with any creditors and taxes, and potential legal challenges to the validity of the Will, the executor’s fitness to perform their role, and any property or other disputes. Formal probates require about one year to complete and, in many instances, it’s longer.

But again, California permits probate to be accomplished in one of myriad ways, depending on the decedent’s particular estate, property values, and family dynamic, and the executor may have broad authority to act without court approval (once they are appointed), in accordance with the terms of the decedent’s Will. Formal probate affords transparency.

Whether or not there is a Will, and regardless of the type of “probate” that is required, administering a decedent’s estate comes with many potential issues and responsibilities, from determining whether there are community property issues and whether a probate may be required elsewhere (“ancillary probate”), to Prop. 19, creditor repayment, and potential federal estate tax issues. If the decedent left a trust, probate may be just one part of the death administration “project.”

See the Litigation and Appeals webpage or the Blog to learn more about how Camarillo probate attorney Ryan J. Casson may be able to assist you if you need help with probate and trust litigation and claims, whether you are a nominated or serving executor or trustee, or a beneficiary or heir.

TRUST ADMINISTRATION

Administering a decedent’s trust is more or less similar to the probate process, except without court oversight (unless legal disputes arise): The trustee accepts his or her formal appointment as trustee (if this has not already been done); identifies, marshals, and values the assets; takes care of any estate, income, and other tax liabilities and filings; and works to ensure certain assets are funded, titled, or otherwise transferred to the appropriate trust “buckets” or individuals, either outright and free of trust or in trust, according to the terms of the deceased trustmaker’s trust. Although work needs to be done, as in probate, a trust affords a family a bit of privacy and, in all, tends to be quite a bit less expensive than the probate process.

There are many different types of trusts (i.e., revocable or irrevocable), and careful analysis and counseling is essential. This webpage is a mere outline and understates the work involved. This is why more than a few folks choose a professional or corporate fiduciary to fulfill the trustee’s role. Call estate planning and elder law attorney Ryan J. Casson for a phone call or meeting in Camarillo to talk about the work involved in administering a trust.

FEDERAL ESTATE TAX RETURNS

A word regarding federal estate tax returns and gift tax returns: The Law Office of Ryan J. Casson is able to prepare and file Federal Estate Tax Returns (Form 706) and Federal Gift Tax Returns (Form 709).

A crucial component to finalizing a decedent’s estate is determining whether federal estate and/or gift tax returns need to be filed, and it is the executor of the estate or the trustee that is responsible for this task and filing the returns with the IRS. A federal estate tax return provides a comprehensive inventory of the deceased person's assets and liabilities, "locks in” basis, accounts for lifetime gifts, addresses community property interests and, based on the decedent’s available “unified credit” or “Applicable Exclusion Amount” (AEA),  reveals the estate’s potential estate tax liability.

The question is, when does an estate need to file an estate tax return (or gift tax return)? The answer is complicated. In general, if the value of a decedent’s estate is below the AEA, filing an estate tax return is not required. However, there may be many benefits to filing an estate tax return anyway: electing DSUE portability; electing QTIP treatment; allocating GSTT, etc. These are complicated concepts that the Camarillo estate planning and tax planning Law Office of Ryan J. Casson can discuss with you. A federal estate tax return, if necessary, needs to be filed within nine (9) months from the decedent’s date of death (which may be able to be extended to fifteen (15) months, or longer), which means that a nominated executor or trustee must begin working with a trust and estate attorney earlier rather than later. Assets will need to be identified and valued, estate planning documents need to be analyzed, and, in addition, the federal estate and gift tax regime is in flux, with the current “credit,” or AEA, expected to drop on January 1, 2026, from $12.92 million per person in 2023 and $13.61 million in 2024, to around $6 million.

With the current unpredictability of the AEA and estate and gift tax regime, it is more important than ever that you work with the estate planning and tax planning Law Office of Ryan J. Casson to outline the appropriate plan to administer your trust or estate, including filing with the IRS any necessary estate and gift tax returns. Call Camarillo estate and gift tax attorney Ryan J. Casson at (805) 384-0400.