Probate is the legal process of settling an estate after a person has died. Through probate, a court determines whether there is a valid will. After a person dies, their property, other than what passes directly to others (i.e. property owned in joint tenancy, life insurance proceeds and retirement plans payable to a named beneficiary), may be subject to a probate proceeding. An estate is generally probated in the county where the deceased owned property. If property is located in another state, additional proceedings are sometimes necessary in that state.
Probate means that there is a court case that deals with:
• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a will is valid; and
• Taking care of the financial responsibilities of the person who died.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 2 years, sometimes even longer.
Most people are surprised to find out that any “interested” person can commence a probate proceeding. This includes creditors, close family members (as defined), heirs, or anyone having a claim against the estate of the decedent. See California Probate Code §8000 and §48.
There are always loose ends to tie up when someone dies. Whether a Living Trust is used or not. Out of court estate administrations are often used to tie up these loose ends when a court proceeding is not required. This would be the case where all assets of the decedent are either titled in joint tenancy, titled in a Living Trust, or have specified beneficiaries tied to the asset (i.e. life insurance, bank accounts with “pay of death” beneficiary designations, retirement accounts with named beneficiaries). Out of court proceedings generally deal with all the same issues as a Probate does, but the court is not involved.
The California Small Estates Procedure can be used for relatively small estates. This procedure is available where less than $150,000 in non-real estate assets exist that would normally be subject to probate proceedings. There are also some simplified procedures available where California real estate is involved and the gross fair market value of the personal property and real property is less than $100,000. However, some court involvement (although much less than a full Probate) will be required.