Probate & Trust
What is Probate?
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.
Once the executor has this authority, the process of gathering the deceased person’s assets can begin. It’s also the time for the executor to get organized, set up a filing system so that benefits and bills aren’t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile and file with the court, an inventory and appraisal of all probate property.
If all this sounds overwhelming, remember that it doesn’t all have to be done at once. It does involve a lot of paperwork (and usually, phone calls), but most well-organized and conscientious people can handle it. And the executor can always get help, from family members or from an attorney who understands the process and can serve as a guide.
Most probates in California are handled under the state’s Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court. (Cal. Probate Code § 10400 and following.) The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts—for example, selling real estate—require court approval.
During the probate, it’s the executor’s job to keep all assets safe. For example, a house must be insured and maintained; heirlooms must be safeguarded from theft or damage. The executor is also responsible for filing tax returns for the deceased person and the estate.
In California, creditors have four months to come forward with their claims. Many estates don’t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example). If there isn’t enough money to pay valid claims, however, state law sets out the order in which claims are to be paid from estate assets.
Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That’s when the executor can distribute all the estate assets to the people who inherit them.
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.