What is probate?
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the "decedent") to his or her beneficiaries.
Usually, you have to fill out court forms and appear in court to:
- Prove to the Court that the Will is valid (this is usually routine),
- Appoint a legal representative with authority to act on behalf of the decedent,
- Identify and inventory the decedent's property, and have that property appraised,
- Pay debts and taxes, and
- Distribute the remaining property according to the terms of the Will or to the decedent's heirs.
Is probate necessary?
If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims.
When there is property to transfer the probate process also provides for the distribution of the estate's property to the decedent's heirs.
Does all property go through probate when a person dies?
No. The term "probate estate" refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person's “non-probate estate.”
California has "simplified procedures" for transferring property for estates worth under a certain amount (from $20,000 to $100,000 depending on the circumstances and the kind of property).
There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy and life insurance and retirement benefits.
To learn more about these simplified procedures, see the Simplified Probate Procedures section of this website.
Should I choose the simplified procedures?
Not necessarily. Talk to a probate lawyer. There may be debts or tax claims that make probate a better option for you. If there are a lot of issues to handle, going through probate allows you to pay the person who deals with the creditors and taxing authorities.
Do life insurance or retirement benefits need to go through probate?
No. The benefits can be paid directly to a named beneficiary. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the persons named as beneficiaries. Bank accounts that are set up as pay-on-death accounts (PODs) or "in trust for" accounts (a "Totten Trust") with a named beneficiary also pass to the beneficiary without probate.
Do living trusts go through probate?
No. When a living trust holds title to some of the decedent's property, that property also passes to the beneficiaries without probate. (For more information, see the Financial and Medical Decision Making - Living Trusts section of this website.)
How much does probate cost?
The cost of probate is set by state law.
When all the costs are added up – these may include appraisal costs, executor's fees, court filing fees and certified copies, costs for a type of insurance policy known as a "surety bond," plus legal and accounting fees--probate can cost from 4% to 7% of the total estate value, sometimes more. Drawing of a deputy
If someone contests the Will, there could be thousands of dollars of litigation costs.
How long does probate take?
California law says the personal representative must complete probate within one year from the date of appointment, unless s/he files a federal estate tax. In this case, the personal representative can have 18 months to complete probate.
If probate has not been completed by that time, the personal representative must file a status report to the court to explain what still has to be done and how much time that will take.
If the personal representative does not report to the court, the beneficiaries can ask the court to order him or her to file an accounting or take other actions to close probate. The court can remove the personal representative and appoint someone else.
Sometimes there are circumstances that can make probate take longer. If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.
Where will the probate hearing be?
In California, probate hearings are in the Probate Department of the Superior Court in the county where the decedent lived at the time of his or her death.
If you have to file a probate petition in another state because there is real property in that state, the courts in that state may use a different name. In New York, for example, the probate court is known as the Surrogate Court.
Who is in charge of the probate process?
If there is a Will, the person named as executor will usually be appointed as the personal representative – this means s/he is responsible for managing the estate and following probate rules and procedures.
The executor has no authority to act as personal representative until s/he is appointed by the court and formal "Letters Testamentary" are issued by the Court Clerk.
If there is no Will, or if the Will doesn’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the probate court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent's assets.
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