What is Probate?

Probate is a legal process occurring in probate court after someone’s death that deals with their finances and assets. It ascertains the validity of the deceased individual’s will and if someone has been appointed as the executor of their estate. An executor handles the estate and distributes its assets according to the will. If there is no will, the probate process identifies who should receive the decedent’s assets and in what amounts. The probate process can be complex, and those managing it will likely benefit from an experienced California trust administration attorney.

Is Probate Required?

Probate isn’t necessary after every adult death. For example, suppose the deceased individual owned assets jointly with another person, as survivorship community property with their spouse, or in a living trust. In that case, those specific assets won’t be required to go through probate. Neither will assets be held in a revocable living trust or accounts for which a payable-on-death beneficiary was named. In California, assets inherited by the surviving spouse or a registered domestic partner can also be transferred with a simplified process, with a document called a Spousal (or Domestic Partner) Property Petition. Even though the probate court has some involvement with this, the process is simple and quick. Another benefit is that there’s no limit on the property’s value.

Other assets might not need to go through probate either. If the total value of the probate estate, or the assets that can’t be transferred to inheritors in other ways, is small enough, the probate process won’t be necessary. Currently, the value is capped at $166,250. To claim the assets, inheritors can use a simple sworn statement (affidavit) or a streamlined summary probate process

When Probate is Necessary

If probate is necessary, someone must begin the process. If there’s a will, the executor is the person who should do this. If there’s no will, or the individual named to serve as executor isn’t available, then usually a family member requests the court to appoint them as the “administrator” of the estate. They perform the same job regardless of the case’s executor or an administrator.

This job will last about six months to a year. The first step is for the executor to file the will and a document called “Petition for Probate.” They must file these with the probate court in the county where the decedent lived and pay a filing fee. The executor may also be required to file other forms and provide formal notices to beneficiaries, particular family members, and creditors.

If the deceased individual had a will, it must be proven valid at this time by having the witnesses sign a sworn statement and submitting it to the court. When all requirements have been met, the probate court issues “Letters Testamentary” or “Letters of Administration,” assigning an executor and granting them authority over estate assets.

Then the process of gathering the deceased person’s assets begins. The executor will need to compile, inventory, and appraise all probate property and then file it with the court. Most of the time, California probate cases are managed under the state’s Independent Administration of Estates Act, which allows the executor to take care of most issues without obtaining probate court permission. In most cases, the executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. However, other actions like selling real estate will require court approval.

Probate can be quite simple or highly complex depending on the state of the decedent’s assets at the time of their death. Therefore, it’s always good to have a knowledgeable probate attorney on your side if you find yourself as the executor or administrator of someone’s probate estate. Contact us today.

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