What is Probate?


The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" who one's legal heirs are if there is no Will. Probate is the process that transfers legal title of property from the estate of the person who has died (the "decedent") to the proper beneficiaries. In California, probate proceedings are conducted in the Superior Court for the county where the decedent lived, and can take a minimum of six months and as long as several years. Small Estates valued at under $100,000 usually do not require probate.

WHAT HAPPENS DURING PROBATE?

The person nominated in the will as executor files a petition asking that he or she be appointed as executor. If there is no will, the Probate Code provides a list of persons who have priority to petition to become executor. The will also is filed with the petition, and notices are sent to the heirs and/or relatives to let them know when the hearing will be held. If there are objections to the petition, or if the validity of the will is contested, the hearing will be used to resolve any problems that have arisen. In some cases this may mean that the validity of the will is not upheld, or that some other person than the original petitioner is chosen to administer the estate. In most cases, however, there is no objection and the petition is granted. The executor then inventories the estate's assets, locates creditors, pays bills, files tax returns, and manages the estate assets. When all of the duties of the executor are completed, another petition is filed with the court asking that the estate be distributed to the heirs and claimants. If this petition is granted, the estate administration is done.

WHY IS PROBATE NECESSARY?

Death is often unexpected. Many people die with substantial assets but no living trust, or without a will. Probate proceedings “wind up” the decedent’s temporal affairs by distributing assets to proper beneficiaries and paying the decedent’s debts and taxes.

The probate process provides an orderly mechanism to pay outstanding debts and taxes of the estate. It sets a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate's property to ones' rightful heirs.

WHO IS RESPONSIBLE FOR HANDLING THE PROBATE PROCESS?

The Personal Representative (sometime also referred to as the "executor" if there is a will, or the "administrator" if there is no will) is appointed as part of the probate proceeding and has the responsibility for managing the estate. In many states, the probate court has a considerable amount of control over the activities of the Personal Representative, and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may occur. However, California, under the Independent Administration of Estates Act gives the personal representative considerable authority to do much of the above without court supervision. An attorney is usually required for probate.

HOW DOES THE PROBATE PROCESS WORK?

The following is a general guide of how the probate process works in California. You should consult with us for specific legal advice after discussing your circumstances and needs.

• Determine whether or not the deceased has an estate with a value in excess of $100,000.00; if not, there may not be a legal requirement for a probate.
• Determine the nature of and inventory the decedent's assets: accounts which are held jointly, joint title real property, retirement accounts and life insurance are not generally subject to probate.
• Determine whether the decedent had a will. If so, the will should name an executor. But if the executor is unwilling to act, there may be an alternate executor named in the will, and if none is named or if there is no will, there are persons who have priority to act listed in the Probate Code (spouse, children, etc).
• The named executor, or person who will be acting on behalf of the estate if there is no will (personal representative), files a Petition and other forms with the Superior Court in the California county in which the decedent resided. A hearing will be set for the court appointment of the personal representative after publication in a newspaper of general circulation of the court date for the hearing, and proper notice is given to heirs and persons named in the will, if any.
• The personal representative, once appointed, then collects the assets of the decedent, which are subject to probate, pays debts, and handles tax issues which may need to be addressed. There is a statutory four-month period for the filing of creditor's claims against the estate. If filed, these need to be handled by the personal representative. Claims against the estate are absolutely barred if no claim is filed, no application made to present a late claim, and no lawsuit filed within one year of the death of the decedent.
• Once the assets have been collected, debts paid, and the statutory period for filing creditor's claims have lapsed, the estate may be closed. Paperwork is filed to accomplish the proper distribution of the estate, and a court hearing is held to formally close the estate.
• The Personal Representative and attorney are compensated, by statute, 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 Million, and ½% in excess of $9 Million