Probate is the court supervised process of identifying and gathering a person's assets after their death, paying all of their debts, and distributing the balance to the rightful heirs or beneficiaries. If an estate exceeds $150,000.00, and if the assets are in the name of the deceased person, only, a probate will generally be required.
The amount of time it takes to administer a probate estate, and the cost of doing so will vary in each case. In a simple estate (House, car, bank account) where property does not need to be sold, a probate can be completed in six months or less. If an estate is more complicated, or if the heirs or beneficiaries cannot work together, administration could take much longer. Fees paid to the attorney and the executor or administrator vary according to the value of each estate, and the amount of extra work each must do to close the estate.
There are many situations where an estate does not require probate, including estates under $150,000.00, estates in trust, and those cases where all of the estate passes to a surviving spouse. Even when probate is not required, however, some sort of legal process is often necessary. This is especially true when an estate owns an interest in real property. Legal counsel is recommended if you have any questions regarding estate matters.
A probate proceeding is used to establish that a Will is genuine and valid, and to transfer a decedent’s assets after death to heirs or beneficiaries. A Decedent is a person who has died with or without a Will. A Will is a document that tells how the decedent wants his or her property (estate) distributed after death. A Decedent’s Estate is all real or personal property owned by the decedent on the date of death. Real Property is property in buildings and land. Personal Property is temporary or moveable, such as jewelry, clothing, keepsakes, or automobiles.
HEIRS AND BENEFICIARIES
Intestate means to die without leaving a Will. Intestate Succession determines the order of those who inherit property of the decedent who died without leaving a Will. Intestacy law is governed by the Probate Code. An Heir is a person who inherits when there is no Will. Testate means to die leaving a Will. A Beneficiary is a person who inherits under the terms of a Will.
ESTATES OVER $150,000
If the estate is worth over $150,000, formal probate must be opened by filing one of the following:
- A Petition for Letters Testamentary
- A Petition for Letters of Administration with Will Annexed
- A Petition for Letters of Administration
ESTATES SMALLER THAN $150,000
There are several ways to transfer property at death, some of which do not require formal probate:
- If the fair market value of the estate does not exceed $50,000, heirs may collect or transfer personal property by an affidavit procedure.
- If the value of decedent’s estate is less than $150,000 but contains real property, a Petition to Determine Succession to Real Property may be used.
SPOUSAL PROPERTY PETITION
A surviving spouse may use a Spousal Property Petition instead of a formal probate proceeding to:
- Confirm community property
- Determine community or separate property passing to the surviving spouse
CUSTODIAN OF THE WILL
In formal probate proceedings, the custodian of decedent’s Will must, within 30 days after decedent’s death, deposit the original Will with the Probate Clerk’s Office in the county in which the decedent resided. A Custodian of the Will is the person who has possession of the will at the time of the decedent’s death. A copy of the Will should be sent to the person named in the Will as executor. An Executor is a person nominated in a Will and appointed by the court to carry out the wishes of a decedent, as set forth in the decedent’s Will. A custodian who fails to comply with this requirement is liable for all damages caused by failing to present the Will.
IF THERE IS NO WILL
If there is no Will and a formal probate is necessary, an Administrator is appointed as estate representative according to a certain order of priority. The surviving spouse of the decedent has first priority. If the person having priority does not want to serve, that person can file a document with the court. The person declining service can nominate someone else to be appointed.
PREPARING AND FILING COURT DOCUMENTS
All court forms and documents should be typed or printed using blue-black or black ink. Filing a petition with the Probate Clerk in The County Superior Courthouse starts the probate proceeding.
SETTING A HEARING DATE FOR PROBATE
When a petition for probate is filed, the Probate Clerk will assign a hearing date. The petitioner must give notice of the hearing to all parties interested in the estate.
PROBATE CALENDAR NOTE
After a petition is filed, a Court Probate Examiner reviews it before the hearing to see if it conforms to the procedural requirements set forth in the Probate Code. The Probate Examiner’s notes are available for review before and after the hearing date in the Probate Clerk’s Office. If a matter is procedurally correct, and there are no objections, the matter may be pre-approved.