What Is Probate?
Probate is the court procedure used to verify the validity of a will and to distribute a decedent's property after their death.
In California, an estate in excess of $184,500 must be “probated” whether or not there is a valid will. It is important to note, however, that many assets are excluded from probate no matter their value. In California, cars, motorhomes and mobile homes do not need to be probated. Additionally, property held in a trust or in joint tenancy is not subject to probate, and neither are life insurance proceeds and bank accounts that pass directly to named beneficiaries. These exclusions allow many estates of significant value to avoid probate.
Probate is much easier when there is a valid will that clearly distributes the estate’s assets. This means less work for the executor and the court. It is possible to complete the probate process without an attorney but it is a very time consuming and often stressful process that happens when the family is still grieving for their loved one.
There are circumstances that can complicate the probate process, making it take longer.
Someone dies without a will: Someone who dies without a will is called “intestate.” When this happens the court will step in to appoint an executor/administrator (usually a relative of the deceased) to make sure the estate is settled. Without a will, the intestacy laws of California will be applied to determine how the estate will be divided.
A will is deemed invalid: A will must be validated by the probate court. The court may not be able to validate the will due to a defect in the way it was written or executed. If the court cannot validate the will, then the decedent’s property may need to pass by the laws of intestacy.
Additional legal oversight is needed: Many individuals forget to regularly update their wills, and as a consequence sometimes assets (or even people) get left out. In cases where additional oversight is needed, probate courts will step in to determine how to distribute certain assets.
Beneficiaries predecease the decedent: If the beneficiaries or heirs named in an estate plan pass away before the decedent, and there are no contingent beneficiaries, the court will decide how to proceed. This is another situation where intestate succession laws will be used to distribute responsibilities and assets.
The Probate Process
In California the probate process will follow this general outline:
A petition must be filed in the county where the decedent lived at the time of their death. The current filing fee is $435. This petition would generally be filed by the executor named in the will or by a relative of the decedent.
Publication of notice of hearing. Notice of the hearing must be published in a local paper three times before the hearing. If there is a will, the executor must mail notice to all parties named in the will, all legal heirs, and creditors of the deceased.
The hearing will be scheduled several weeks after the petition is filed. At the hearing the judge will determine the validity of the will (if there is one) and officially appoint the representative (likely the person named as executor in the will). The judge will issue a letter testamentary (if there is an executor) or letter of administration (if there was no will naming an executor) granting the representative the authority to settle the estate.
Closing the estate. The representative will pay off debts of the estate and make the gifts and disbursements according to the terms of the will or of the California intestacy laws.
