6 Basic Probate Questions and Answers

Let’s start with an obvious question” What is probate? It’s really a “final accounting” after someone dies. If the person dies leaving behind a will, it is the process of “proving up” that will and transferring the person’s assets to his or her living heirs. This is the most common type of probate.

If the person did not leave behind a will or a will cannot be found, the process gets a little more complicated and more expensive. The person’s assets will have to be identified to determine probate property.

Probate property is typically all of the assets that are not held in trust and that does not pass title by some other means (such as joint tenancy or beneficiary designation).

If a person has no will in place, and his or her assets are not held in trust, California law will determine who will receive that person’s probate property.

What is the process when there is a will?

The will is filed with the court with an application for a “Letter of Testamentary” – the document that gives authority to the executor or executrix of the estate who was named in the will. A notice of this filing is then filed with the courthouse for 10 days. Then, a hearing may be held.

At the hearing, the court hears evidence that the will is genuine and was executed properly. The executor signs an oath and a Proof of Death and Other Facts which is a summarization of the evidence needed to admit the will to probate.

After the hearing, the executor receives the Letter of Testamentary granting authority to act on behalf of the deceased. This document can be taken to banks and financial institutions, stockbrokers, title offices, etc. who will follow the executor instructions to transfer assets.

A notice is published in the local newspaper for general circulation in the area where the deceased lived. This is done so heirs and creditors will be made aware of the death and will be able to make a claim on what they think they are due.

Within 90 days of the appointment of an executor, other documents are filed that detail the inventory of assets, an appraisement of value, and a list of claims (debts owed to the estate). After this filing and after all property has been transferred according to the will, the probate is complete.

What happens when there is no will?

When there is no will, a dependent probate administrator (executor) is appointed to handle the probate duties. The term “dependent” refers to the administrator’s need to get the court’s approval for the transactions that are a normal part of the probate process, such as the sales of real estate or personal property. Usually, a bond is posted to protect the estate from any possible harm caused by the administrator. The court may also appoint the appraisers who will determine the value of the deceased’s property to prevent the stealing of estate assets or the cheating of heirs.

A yearly accounting must be filed each year that the estate is open. A final accounting must be filed when the estate is closed. The administrator must continue to ask for court approval on all major transactions until the estate is closed.

What is involved with estate planning?

Estate planning is the process of making the necessary decisions to put a person’s (or a couple’s) affairs in order and to state your wishes on what should happen with your assets and property should you pass away or become incapacitated.

Should you have a sudden accident or illness, you can be confident that your spouse, children, other persons you choose, or nonprofit organization will receive the benefits you want them to have.

A full estate plan involves a list of specific instructions as to whomever you want to be in charge of administering your estate, how you want things managed, and how you want your assets distributed.

The plan can include a Declaration of Trust (describing your assets like property, savings, stocks, bonds, retirement accounts, etc.). It can include a Durable Power of Attorney for financial or health decisions. It can include an Advance Health Care Directive. And it can include other documents to make your estate plan complete.

What is meant by “revocable living trust?”

A trust is a contract that reflects the agreement regarding the passing of property from one person or organization to another. It is a living trust because it can be amended. And it is revocable because it can be revoked or terminated by the Trustor – who created the trust.

A Trustee manages the assets that the Trustor placed in the trust. Usually, the Trustor is the same person as the Trustee in the beginning, until the trust is handed over to another Trustee.

A Beneficiary is a recipient who will inherit the assets of the trust at some point. The Trustors, Trustees, and Beneficiaries are named n the trust document. Most often, a revocable living trust will allow beneficiaries to receive inheritances directly without going through the court process.

Shouldn’t I try to avoid probate?

Probate without a will can be unnecessarily complicated and expensive for the transfer of your assets. Many times, legal battles occur between family members, and it can take years to settle them. But probate with a will is fairly straightforward because your wishes are clearly stated.

You can establish a revocable living trust to avoid probate. Or you can have a “payable-on-death” arrangement for some accounts. Or you can have joint holdings (e.g. with your spouse). But you should discuss these options with an experienced attorney first.

What are the benefits of having a will?

A will enables you to specify who will receive your property and assets when you die. It allows you to name your beneficiaries and who will manage the transfer of assets as the executor or executrix of your estate.

Without a will, you are allowing your estate to be handled by the State of California, putting your heirs at risk of not receiving what you intended them to receive. For peace of mind as well as less expense, you should consider drafting a will (also called a last will and testament).

The probate process without a will can be time-consuming (lasting years) and can be expensive as well as put emotional and financial demands on your family that can drive them apart. You may also forfeit any possible tax deductions on taxes due upon your death. There are many things to consider. An attorney can answer all your questions.