What is Probate?
Probate is the process of determining what a deceased person's property is, and distributing that property to the correct people. It is a process that goes through the court system, and is a public record. The purpose of probate is to ensure that the people who are legally entitled to the property of a deceased person receives that property. Probate clears title to property. A child, even if he or she is named as the recipient of the parent's house in a will, would not be able to sell the house without it going through probate. Same with other assets such as bank accounts and brokerage accounts.
Probate only deals with certain assets. If, for example, a person died with a living trust, then the property titled in the trust would not go through probate. Sometimes a person passes away and has property that goes through probate, such as a house, and also has property that does not, such as a life insurance policy with named beneficiaries.
Below are a few definitions of common probate terms that could be helpful to understand probate.
Personal representative: The person tasked with handling the Probate process.
Will: An estate planning device that allows a person to determine who gets what property. A will usually also states who should act as personal representative. Having a will does not avoid probate.
Intestate Succession: When a person dies without a will, the rules of intestate succession determine who receives the property in probate.
Inventory and Appraisal: The formal determination of what property belongs in probate and the value of that property.
Petition for Probate: The initial forms that must be submitted to the court to start the process of probate. It informs the court of all the basic information of the deceased.
Letters Testamentary: The document that gives the personal representative authority to act on behalf of the estate. This is usually required to gain access to information from institutions such as banks.
Why Hire An Attorney?
There are many documents that must be filled out completely, and a very strict process that must be followed. We can take the burden off of you if you find yourself having to go through probate. Some of the basic procedures that all probate cases must go through are the following:
1. File a petition to become the representative of the estate;
2. Provide legally required notice to all entitled heirs and beneficiaries of the estate;
3. Determine if the estate assets exceed the statutory limit for probate;
4. Determine who is qualified to become representative of the estate per California law;
5. Acquire proper inventory and appraisal of assets from the Probate Referee;
6. Acquire Letters of Administration or Testamentary once issued by the court;
7. Ensure the personal representative has full powers to act;
8. Provide all required legal notices to creditors, the California DHS and FTB;
9. Schedule publication of notice of death with the proper newspaper;
10. Calculate fees to be paid to representative to be paid according to California statutory rate;
11. Properly determine any and all beneficiaries of the estate and how much they are to receive;
12. Acquire proper bond to insure the estate;
13. Obtain accounting of the estate for the period between the start of probate and end of probate;
14. Draft and file a final petition requesting ending probate and for distribution to occur; and
15. Provide the court with a proper order to sign.
These are the basics, not including major obstacles such as handling real estate or dealing with an unhappy heir. It can seem a bit overwhelming. Probate is not designed to be easy. Rather, it is designed to ensure that property is distributed to the proper people. All who are involved, such as the beneficiaries of the estate, the personal representative, the lawyers helping, and the judge, need to act carefully. Because of the complexity and time consuming nature of probate, many hire an attorney to help them get through the process.