What is Probate?
Probate is the legal process of transferring property upon a person’s death. Probate is a public, court-supervised process, and it becomes necessary when someone dies without a Living Trust. A Last Will and Testament alone is not enough to avoid Probate, but if the deceased created one, it can act as a roadmap for the Probate process, especially if it identifies the estate’s Executor and the way in which the deceased wanted the estate’s assets to be distributed among its heirs.
Probate is never easy. It comes at a time of loss and grieving and it is time-consuming and it can be expensive. Many people think they need an attorney to oversee and execute the Probate process. But if the Probate is uncontested — if none of the heirs or beneficiaries is disputing the distribution of the estate — you do not need an attorney.
Probate is actually a very methodical process, and it is a growing practice area for DP Probate Services. We help our clients through the step-by- step process, saving them considerable money.
Probate is a very methodical process, and it includes locating and determining the value of the decedent’s assets, liquidating them, if necessary, to pay the final bills and taxes, then distributing the remainder of the estate to the rightful heirs or beneficiaries.
The Probate process begins by naming an Personal Representative
(Administrator/Executor) to manage the process
The Personal Representative is generally a family member, but it may be a third party, such as a bank representative or a fiduciary. It must be someone with time and the ability to manage financial affairs. Depending on the complexity of the estate, it can take several years to settle a Probate case.
- If there was a Will naming an Executor, this jumpstarts the Probate process. The Executor presents the Will for Probate in the county courthouse where the decedent lived or owned property.
- If there is no Will, an Administrator must be appointed by the court to act as the administrator of the decedent’s estate. While this is generally the spouse or an adult child of the decedent, it can be a third party, such as a bank representative or a fiduciary.
Once the court has name the Administrator/Executor, this person becomes the legal representative of the estate. While the Probate process can be long and convoluted, depending on the complexity of the estate, it is also a very logical process with four basic steps.
1. File a petition and give notice to heirs and beneficiaries
If an heir or beneficiary objects to the petition, that person has the opportunity to do so in court. Probate is a public process, which means that a notice of the hearing must be published in a local newspaper to notify potential unknown creditors of the Probate proceeding.
2. Give notice to all known creditors
The Administrator/Executor must give notice to the estate’s creditors and inventory the estate’s property. A creditor who wishes to make a claim on the estate’s assets must do so within a certain period of time; in California, creditors have four months to make claims.
An inventory of assets should include real property, stocks, bonds, life insurance policies, valuable collections and possessions and ownership or interest in businesses. The sum total will identify the overall value of the estate. When necessary, an appraiser is hired by the estate to appraise items such as collections– art, jewelry, stamps, coins, etc.
3. Pay funeral expenses, debts and taxes from the estate
The Administrator/Executor validates creditors’ claims and pays those as well as the Probate case’s administrative operating expenses, taxes and the final bills that trickle in from the estate. If debts outweigh assets, the Executor needs to identify which of the estate’s assets to sell to satisfy outstanding financial obligations.
4. Distribution of the deceased's property.
Once all debts and have been satisfied, the remaining assets can be distributed among the heirs.
5. Transfer legal title of property
Once the four-month waiting period for creditors to file claims against the estate has passed and all approved claims and bills are paid, the Administrator/Executor petitions the court for the authority to transfer the remaining assets to beneficiaries as directed in the decedent’s Will or, if there was no Will, according to California succession laws. It’s imperative that the Administrator/Executor keep detailed records, as the petition may include an accounting of how the assets were managed during the Probate process. Once the petition is granted, the personal representative may draw up new deeds for property, transfer stock, liquidate assets and transfer property to the appropriate recipients.
Frequently Asked Questions:
Q. What Property Need Not be Probated?
A. As a general rule, the following types of property need not be probated:
- Joint tenancy property
- Life insurance with a named beneficiary other than the decedent’s estate
- Pension plan distributions
- Property in living (inter vivos) trust
- Money in a bank account which has a named beneficiary who is to be paid on death (this is sometimes called the “Totten Trust”)
- Individual Retirement Accounts (IRAs) that have named beneficiaries, and
- Community property or separate property that passes outright to a surviving spouse or registered domestic partner (this sometimes requires an abbreviated court procedure
Q. What Property Must be Probated?
A. The probate estate (property that must cross the formal probate bridge) consists of all property, except the property that falls into the above categories, that has a combined total of $150,000 or more.
Q. Can Property Subject to Probate be Sold?
A. If a Personal Representative has been given full independent administration authority by the Court, he/she is allowed to sell the real property by giving Notice of Proposed Action to the Court and interested parties. The Notice of Proposed Action must be given 15 days (+5 days mailing) before the sale date to all persons whose interests will be affected, at which point an interested party will either consent or object to the terms of the sale. The court is not involved in any other way.
The usual requirements that apply to sales of real estate through a probate court proceeding, such as publication of notice of sale, court approval of the sale price and of agent’s and broker’s commissions, do not apply under the Act. The Personal Representative may sell the property at price and on terms that they find acceptable (Probate Code 10503).
If the Personal Representative does not have full independent administration authority, selling real property is more complicated. The sale must be confirmed by the court, and the Personal Representative must file a Report of Sale and Petition for Order Confirming Sale of Real Property.
Q. What Does It Mean To Die “Intestate”?
A. A person who dies “intestate” is a person who dies without a will.
We are not attorneys. We can only provide self-help services at your specific direction. DP Legal Solutions is not a law firm, and cannot represent customers, select legal forms, or give legal or tax advice. Services are provided at customers’ request and are not substitute for advice of a lawyer. Because legal needs vary from individual to individual, you should seek the advice of trained professionals if you have any questions regarding your particular legal matters. Prices ALWAYS do not include court costs.
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