Probate is a legal proceeding that is used to transfer a person’s legal and financial affairs after death. The probate court determines whether a decedent’s Will is legally valid. The court will also be looking to see if the debts for the decedents are paid and the assets are distributed according to the desires expressed in the Will. If the decedent does not pass on a will or any other testamentary document, the probate laws of the State of California will decide how the assets of the person are distributed.
The Basic Probate Process
If probate is necessary, someone must come forward to start the process. If there’s a will, the executor named in the will should get the ball rolling. If there’s no will, or the person named to serve as executor isn’t available, then usually a family member asks the court to be appointed as the “administrator” of the estate. It’s the same job.
Do I need to go to Probate court?
You may or may not need to go to probate court to obtain title to property belonging to a dead person. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.
And deciding if probate court is needed may also depend on how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries. For example:
- Type of Title Ownership:: Sometimes all or some of a dead person’s property passes directly to the beneficiaries because of how the property is owned. So if the property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property.
- Type of Contract: Sometimes all or some of a dead person’s property does not need to go through probate to pass to the beneficiaries. This is because this property is a type of contract with named beneficiaries. Examples of this are life insurance that pays benefits to someone else other than the dead person’s estate, retirement benefits, death benefits, and trusts.
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