Probate
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. 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.
Frequently Asked Questions:
Q. What 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?
Q. Can Property Subject to Probate be Sold?
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”?
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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation.