WHAT IS PROBATE


In simplified terms, probate is the legal process of settling the financial affairs of a deceased individual after they die via court supervision; i.e. the distribution of their assets and payment of their debts. On average, probate in California takes about twelve to eighteen months. However, if problems arise, the process can much longer.

The Will:
Often, this entire process pivots on the existence of a Will, if it can be located, its contents, and its validity will dictate the parties and actions to be taken. In short, a Will is a written document or oral declaration directing who will own your property when you die. Although there are some exceptions, a formal Will must be in writing and signed by the individual in front of a witness. Wills are usually used with the intent to gift or bequest particular items or property to specific individuals or causes.

Assuming a valid will has been located and an executor of the estate has been named, or an administrator has been appointed by the court, that person will be tasked with collecting the assets, paying the debts and expenses, and then distribute the remainder of the estate to the beneficiaries with a legal right to inherit. If someone dies without a Will, the California Probate Code sets forth a priority list for who should be the administrator, such as: (i) Surviving spouse or domestic partner; (ii) Children; (iii) Grandchildren; (iv) Other issue; (v) Parents; etc.

Probate Petition:
The primary purpose of petitioning the court to commence the probate process involves the appointment of the executor/administrator to act in the place of the decedent to pay off their debt and distribute their assets. Filing a Petition for Probate with the court typically includes a copy of the will, a death certificate, and the actual Petition which sets forth a general understanding for the court to follow.

Once filed with the court, a hearing will be set in which the heirs, beneficiaries, and creditors must be notified. This notice may be made directly in writing to those you can identify and through a newspaper publication for other potential parties who cannot otherwise be identified.

Executor/Administrator:
Once granted authority by the court, this individual will have the authority to act in the place of the decedent to manage the estate assets with the care of a prudent person dealing with someone else’s property. This involved inventorying and appraising the estate assets which will need to be filed with the court and provided to all interested parties. At this same time, a change of ownership statement will need to be provided to each county where the decedent owned real property at the time of death.

Once the creditors have been provided with proper notice, they will be allowed to bring forth any claims which can then be either paid or contested if not legally enforceable. This step is very important in that the estate cannot be distributed until the creditor’s claims are resolved. Estate funds, when available, are generally used to pay all the decedent’s debts and final bills, including those that might have been incurred during the final illness.

During this process, the decedent’s personal tax returns will also need to be filed for the year in which they died. The estate would be liable for any taxes then due, and would also be paid through available estate funds. If necessary, the estate may need to be liquidated to raise the necessary capital to pay creditors and taxes.

Distribution:
Upon submission and approval of a final accounting to the court, which includes a record of every financial transaction engaged in throughout the probate process, including court cost, legal fees, and administration fees, with court approval, the remainder of the decedent’s estate may then be distributed to the beneficiaries named in the will.

Is it important that you retain every document and receipt you receive as executor/administrator.  You will need to present all of your records and receipts to an accountant or your attorney to prepare a probate accounting. Anything you cannot prove to be a valid estate expense will be charged against you personally.

Without a court order, no distributions or fees can be paid to you or your attorney.

Key Terms:

  • Administrator – the person that the court appoints to manage the estate of the person who dies without a Will. The administrator is also called the personal representative of the estate.
  • Beneficiary – a person who inherits when there is a Will.
  • Decedent – the person who died.
  • Decedent’s Estate – all real and personal property that a person owned at the time of death.
  • Executor – a person named in a Will and appointed by the court to carry out the dead person’s wishes. The executor is also called the personal representative of the estate.
  • Heir – a person who inherits when there is no Will.
  • Holographic Will: a Will that is handwritten, dated, and signed by the person writing the Will.
  • Intestate – when someone dies without leaving a Will.
  • Personal Property – things like cash, stocks, jewelry, clothing, furniture, or cars.
  • Personal Representative – the administrator or executor that the court appoints to manage the estate.
  • Real Property – buildings and land.
  • Successor – anyone who has the legal right to receive property of a person who dies, either under the Will or the Probate Code.
  • Testate – when someone dies leaving a Will.

Conclusion:
Often time the entire probate process can be avoided through proper estate planning, such as establishing a living trust. In addition, if the estate is small or the estate can pass to other people through simplified procedures informally. 

Please see our other related articles

Wills and Trust
Community Property
Holding Title to Property
Power of Attorney

Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax, or other professional services. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.

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