Probate Basics – Questions and Answers

by | Jun 17, 2016

“If you choose not to decide, you still have made a choice.”
Rush ~ Freewill

We will all, inevitably, die. Whether or not you have created a will, the property that you leave behind will be distributed in some manner. If you plan ahead and create a will or trust, then the property goes where you say it does. If you decided “not to decide” then state law will make those decisions for you.

What many people do not realize is that a will, alone, will not result in your property being legally transferred to your beneficiaries. A will is just a set of instructions to the Probate Court regarding your last wishes. The filing of a probate case allows the Court to make sure that

    (1) The will is valid,
    (2) The proper person is appointed as executor or administrator,
    (3) The personal representative is given authority to act on behalf of the deceased person, and
    (4) Oversees the actions taken by the personal representative.

The Basics

Below is some basic information about Probate and Estate Administration that may be helpful.

I. I am the executor and beneficiary of a will that distributes the entire estate to me, why do I need to go through probate? Isn’t probate just an unnecessary expense?

No – In order for the requests contained in the will to be legally executed, the will must be admitted to probate and the decedent’s estate ‘probated.’

If you are the executor, then probate is your friend. Probate will allow you to get an order from the court that confirms the actions you take in following the directions in the will. The court orders given in a probate case help to protect you from later claims that you did not act correctly.

In addition, probate gives you the legal right to transfer ownership of the decedent’s assets to others. Without proper authorization (Letters of Administration or Letters Testamentary) you cannot change title to assets such as real estate and automobiles. You also cannot close the decedent’s accounts with financial institutions, such as banks and stock brokers.

II. What is probate?

Probate is a court proceeding that allows for the administration of a decedent’s estate and provides for court, or judicial, monitoring of the probate process.

III. What is ‘Estate Administration’?

Estate Administration is a term for the administrative process of carrying out the instructions contained in the will. There are five general purposes or goals of Estate Administration:

    1. To verify and confirm that the decedent is actually dead;
    2. Establish the validity of the will;
    3. Identify the legal heirs and devisees of the decedent;
    4. Provide a process and forum to allow the decedent’s creditors to make claims against the decedent’s estate and be paid from assets in decedent’s possession at the time of his/her passing;
    5. Distribute the remaining assets of the decedent’s estate to the decedent’s heirs and devisees – either according to the will or state law.

IV. Who is the Public Administrator and why do I care?

The Public Administrator is a person or office appointed by the State to carry out probate in the event that there are no qualified individuals willing to open probate or otherwise distribute property of a decedent. The Public Administrator is typically only appointed when there is property of value remaining in the estate (such as real estate) and no one else is available to initiate or complete the probate proceedings.

V. What is the difference between ‘Testate’ and ‘Intestate’?

‘Testate’ simply means that the decedent died with a valid will. Based on the directives of the will, the court will allow appointment of an ‘Executor’ as Personal Representative to administer the estate. The court will assist the Personal Representative in distributing the assets of the decedent according to the express wishes (as contained in the will) of the decedent.

‘Intestate’ means that there is no will. The court will allow the appointment of an Administrator as Personal Representative to administer the estate. After paying creditor claims, the proceeds of the estate will first pay all administrative expenses of the estate, including the compensation of the Personal Representative and the attorney, and the remainder will be distributed to the beneficiaries of the estate.

VI. What are the major steps to a typical, uncontested probate?

In general terms, the major steps involved in a probate are:

    1. After the death of the decedent, the will is filed (or “lodged”) with the court. In California, the will is lodged with the Court Clerk.
    2. A petition for probate is filed with the court seeking either:
      1. a. Probate of the will and Letters Testamentary to the Personal Representative; or
      1. b. Intestate probate and issuance of Letters of Administration to the Personal Representative.
    3. A Notice of the Personal Representative’s intent to begin administration of the decedent’s estate is also published in a local newspaper or legal journal.
    4. A hearing is held on the petition.
    5. Letters Testamentary (testate) or Letters of Administration (intestate) are issued by the Court.
    6. Notice is given to all known and reasonably ascertainable creditors of the decedent.
    7. An Inventory and Appraisal of decedent’s property is conducted. In California, the Appraisal is conducted by an assigned Probate Referee.
    8. A Federal estate tax return is filed on behalf of the decedent.
    9. The Personal Representative and attorney prepare and file a petition containing a Final Accounting and seeking orders allowing for distribution of decedent’s property.
    10. The Court issues a final decree of distribution.
    11. The Personal Representative is discharged and the case is closed.

VII. Can real property be sold while it is “in probate”?

Yes. Although the number of details and considerations involved are beyond the scope of this article, real estate can be sold either through a normal private sale or at a public auction.

VIII. Who receives the decedent’s property when there is no will (intestate).

The California Probate Code (Prob. Code § 6400 through § 6414) addresses intestate succession and distribution.

In Conclusion

Please note that all probate matters are heavily dependent upon state law and the particular circumstances and considerations involved in any individual case. The information above should be treated as a general guideline regarding the questions and matters addressed. For an analysis of any individual situation, please contact a qualified attorney.

If you have any other questions that you would like to see answered in this forum, please send me a note and I’ll try to find an answer for you.

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