Probate - Frequently Asked Questions
What is Probate?
Probate is a legal process that takes place after someone dies if there is no living trust. The probate process includes:
- Proving in court that a person is deceased and their will is valid, assuming they had a will. This is fairly routine.
- Identifying the heirs of the decedent.
- Creating an inventory of any real estate and personal property of the deceased.
- Having the property appraised.
- Notifying all creditors of the deceased.
- Settling and paying any debts and taxes.
- Distributing the property in accordance with the terms of the will or according to law, if there is now will.
What is a probate asset?
Assets held only in the name of the decedent are generally probate assets. An asset is not included as a probate asset if it is owned in joint tenancy or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance policies and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be included in the estate and will probated. If there is a surviving spouse, a formal probate can often be avoided with a spousal property petition.
I am in possession of a will that distributes the decedent's estate to me. Isn't this all that I need?
No. The will must be admitted to probate and the estate of the decedent must be probated.
How does a probate case get started?
Probate begins with the filing of a Petition for Probate at the Superior Court in the county where the decedent resided. The petition is usually prepared by the attorney for the person who wants to become the executor or the administrator. The Petition for Probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether a bond will be required.
Who decides whether a petition will be approved?
The decision is made by the probate judge who hears the case, but the preliminary work is usually done by a probate examiner. The probate examiner reviews the file, makes sure that all state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to provide the petitioner an opportunity to present his or her case.
How can a person see the will of a someone who has died?
If the estate is in probate, a person can go to the Superior Court clerk's office in the county in which the decedent resided and ask to see the file. The file will include the person's will and any other documents that have been filed in the case.
Who is responsible for handling a probate?
If there is a will, the executor named in the will normally hires a probate attorney to file the petition and handle the probate process. If there is no will, the court appoints an administrator who normally handles the probate process. If real estate is involved, the executor or administrator will select a real estate brokerage firm to handle the sale of any real estate. The real estate broker will coordinate everything with the probate attorney.
What is the difference between an executor and administrator?
An executor carries out the directions and requests set forth in the decedent's will. An administrator is appointed by the probate court to manage the estate of a decedent who dies intestate.
Do all estates require probate?
No. Not all estates must be probated. A probate attorney will be able to advise you. The answer depends on several factors including the size of the estate, the types of property in the estate, and how tittle to the property is held.
Who is the Public Administrator?
A public administrator is a person or entity appointed by the state to act when there is no will or relatives.
Should I hire a probate attorney?
Yes. You should consult with an attorney that has experience with probating estates. Probating an estate requires specialized knowledge so you should not hire an attorney without probate experience.
How much does a probate cost?
The answer depends on the size of the estate. The state of California has established a standard schedule fees for most of the services that will be required to be performed. When you consult with a probate attorney, he or she will be able to estimate the fee. Generally, probate fees are paid from the sale of assets in the estate, so no advance legal fees are usually required.
What is the difference between "testate" and "intestate"?
When a person dies testate, it means he or she had a will. If a person dies intestate, it means he or she had no will.
If there is no will, how is the property of the estate distributed?
Sections 6400 through 6414 of the California Probate Code addresses intestate succession and the distribution of property. The method and manner of intestate distributions is quite complex and therefore one should discuss intestate distributions with his or her attorney.
Can real estate be sold during the probate process?
Yes. Pacific-Realtors.net works with probate attorneys, executors, and administrators during the probate process to sell any type of real estate, located anywhere in the United States.
Who will receive a notice that a probate has been started?
California law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are listed in the will, and any proposed executors. The notice will state the date and time of the hearing and the court where the case will be heard.