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Probate

Services We Can Help You With:

  • Full Probate
  • Summary Probate for Small Estate
  • Spousal Property Petition
  • General Conservatorship
  • Limited Conservatorship for Developmental Disability
  • Guardianship

Historically, “probate” referred to the process of proving one’s will. Today, “probate” refers to the entire court-supervised process of administering a decedent’s estate, regardless if someone dies with a will (testate) or without a will (intestate). The administration process includes the following:

♦Collection of Assets: Identifying and inventorying the decedent’s assets which will be appraised by a court-appointed probate
referee.

♦ Payment of Debts and Taxes: Notice to all potential creditors must be given and all valid claims are to be paid prior to assets being distributed and the probate estate being closed. Additionally, for those estates where a personal representative has been appointed on or after July 1, 2008, the Franchise Tax Board must also be given notice of the administration of the estate within 90 days of the representative being appointed. All federal and state tax returns must be filed on behalf of the decedent individually and on behalf of the estate and all taxes due, brought current.

♦ Distribution of the Estate: The estate will be distributed pursuant to the terms of the will, and if there is no will, then according to laws of intestate succession, set forth in California Probate Code sections 6400-6414.

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.