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What happens with a will after a person dies?

| Jul 11, 2020 | Probate |

When a person with a will passes away, the will must be filed in probate court before assets listed in the will can be distributed. When the will is filed in probate court, it becomes public, and interested parties have an opportunity to contest the will. In California, only interested parties can contest the will, but these parties can include family members, beneficiaries listed in the will, and creditors of the decedent. If a person dies without a will or a trust in place, that person’s assets will be distributed by the court in accordance with California law, which means that spouses and children will be first in line to receive assets.

Some people may be wondering if there is a benefit to wills if assets in a will still have to go through probate. The reality is that most wills are not contested, and they do provide instructions to the court as to how assets should be distributed after any debts are paid off. Unfortunately, probate court can take years and cost money, which comes out of the estate.

If an asset has a designated beneficiary, such as a 401(k), that asset will typically avoid probate. Other assets that typically avoid probate are community property homes or other joint tenancies with a right of survivorship.

Someone who wants to avoid probate court altogether should consider a living trust as an alternative to a will. Living trusts can serve a variety of purposes, including making it easier to pass on assets to a minor without a court proceeding, since the assets in the trust can be held there until a child beneficiary comes of age. If a person is unsure of whether to create a will or trust, an estate planning attorney may be able to help.

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