Probate 101

What is probate?

The probate process is when the court supervises the transfer of title from the person who died (the decedent) to his or her beneficiaries.  Additionally, the probate court will appoint a personal representative to oversee the process, ensure that the decedent’s debts and taxes are paid, and will notify the decedent’s heirs, creditors and the public that the decedent has passed away,  

If the decedent has a valid will, then the court will look to the decedent’s will to determine how their property should be distributed. If the decedent does not have a valid will then the probate laws will govern how the decedent’s property is distributed.

What does it mean to die intestate?

A person is deemed to have died "intestate" if he or she died without a will. If the decedent has died without a will, then California's state laws will determine how his or her estate will be distributed.  

Nonprobate Property

Regardless of whether or not the decedent has a will or trust, there are some types of property that automatically by-pass the probate process.  Nonprobate property includes:

·         Life Insurance Policy

·         Retirement benefits (including money from IRAs, Keoghs, and 401(k) accounts

·         Bank accounts that are set up as pay-on-death (PODs)

·         “In Trust for” accounts with a named beneficiary

The Probate Process

The length of the probate process will vary depending on the complexity of the decedent’s estate.  If a formal probate is required, then generally it will take 7-9 months to complete unless the estate is complex.  On the other hand, if the decedent’s estate is small or if everything is going to a surviving spouse or domestic partner, the process can be completed in a matter of weeks using nonprobate procedures.

When is the Formal Probate Process Not Necessary?

Many estates do not require a formal probate proceeding.  Generally speaking, a formal probate proceeding is not required if: 1) the estate contained property valued under $150,000; 2) most of the decedent’s assets were held in joint tenancy, as community property that passes outright to a surviving spouse or domestic partner; or 3) the property was held in a trust.

Do I Need to Hire an Attorney?

No, you are not required to hire an attorney to settle an estate in probate court. However, it is generally recommended that you seek legal counsel if the estate is complicated such as distributions will likely be contested or if the estate has complex assets such as a going business owned by the decedent or substantial income from royalties, copyrights, trusts etc.  

It is also important to know that in a probate proceeding, attorney’s fees in California have been set by law and are based on a percentage of the gross estate.