Probate Terms, Explained
Updated: Jan 25
Probate is a complex legal proceeding that many individuals are forced to go through during one of the most difficult times of their lives: after a loved one has passed away. Below is a brief explanation of some of the terms you might run into when navigating the world of probate.
First, what is probate?
Probate is the formal court process of passing property from one person to another after death. Say your parents own a house. If the house is not in a Trust when they pass away, you will likely have to petition the court and go through a probate proceeding to transfer title. Because it does not happen automatically, probate is the process to get the house re-titled into the right person’s name.
Who is the decedent?
The decedent is the person who passed away, whose property now needs to be transferred.
What is the difference between an administrator, executor, and personal representative?
A personal representative is the broad term for the person the court appoints to carry out the probate duties. There are two types of personal representatives: the administrator and the executor.
An administrator is the personal representative appointed by the court in one of two situations. The first situation is where the decedent died without a will. The other is when the decedent died with a will but the will does not nominate a personal representative.
An executor is the person who is appointed by the court when the decedent nominated who they wanted as personal representative in their estate plan. A good estate plan will nominate both an executor and alternates. This way, there is a better chance the estate will be administered by someone the decedent knew and trusted.
What are letters of administration and letters testamentary?
Letters, in general, give the personal representative her official authority over the estate assets. Letters are the proof to the world that the personal representative is allowed to handle the assets of the estate by selling them or transferring them. There are two types of Letters, Letters of Administration and Letters Testamentary.
Letters Testamentary are issued to the personal representative when the decedent died with a valid will. Letters of Administration, on the other hand, are issued when the decedent died without a will.
Letters, of either type, are issued by the court once the personal representative has been appointed. They can be with or without full authority under the California Independent Administration of Estates Act. With full authority, the personal representative can act independently, carrying out most of her duties without court supervision. Without full authority means the personal representative must get court approval for most actions taken as representative.
What is a probate bond?
Because the personal representative has power to sell and transfer the decedent’s assets under the letters of administration, there is a risk that she will abuse her authority. To keep the personal representative accountable to the beneficiaries, a bond is required. This means, the personal representative deposits a sum of money to be held while she administers the estate.
Once the personal representative fully administers the estate and the court has approved the final accounting, the personal representative will get the bond money back.
The bond requirement can be waived with a bond wavier if all the beneficiaries trust the personal representative. In an uncontested probate proceeding with a family that gets along, a bond waiver is common practice.
Who is the probate referee?
A probate referee is a person appointed by the court to appraise the value of the decedent’s property. Typically, the fee for appraising the decedent’s property will be one tenth of one percent (or 0.1%) of the total value of the estate. Smaller counties might only have one or two probate referees to choose from, while larger counties, like San Diego and San Francisco, have seven at the time of this writing. A list of probate referees by county for the state of California is listed at: https://sco.ca.gov/eo_probate_contact.html.
What is an inventory and appraisal?
An inventory and appraisal is the official form and document that must be completed by the probate referee to value the decedent’s property. All the decedent’s real property and most personal property going through probate will be inventoried and appraised in this manner.
What is an accounting?
Typically, the personal representative will have to submit a final accounting to the court before the estate is closed. The accounting will show all the assets in the estate, from when the decedent passed away to the date of the accounting. In addition to the bond, the accounting is another way to keep the personal representative honest.
Similar to the bond, the beneficiaries can waive the final accounting if they trust the personal representative. Waiving the accounting will save both time and money if all the beneficiaries trust the personal representative.
In conclusion, although not comprehensive, hopefully this guide will help someone new to probate navigate through a first meeting with a probate attorney or the first encounter with a petition for probate.
The information in this blog is intended only as general information, and under no circumstances constitutes legal advice, nor does it create an attorney-client relationship. The information should not be relied upon as a substitute for specific legal advice concerning your particular situation.
For advice specific to your situation, contact us to schedule an appointment.
About the Koons & Riswold Law Office
Koons & Riswold maintains an office in Davis, CA and Auburn, CA to provide clients with legal services in Auburn, Davis, and the surrounding areas. Our Auburn and Davis lawyers provide legal services, which include: Living Trust and Estate Planning services, Probate, Elder Planning, and Trust and Estate Administration. Our lawyers have deep roots in Northern California, having strong familial, community, and professional ties to the region.