Probate

Probate is a court proceeding that winds up and distributes a person’s estate when they pass away. If assets are only in their name, and do not belong to a trust, a Petition for Probate must be filed.

If the person has a will, the named executor or personal representative may file this Petition. Sometimes there is more than one person named as an executor or personal representative in a will. In that case, they can petition to be co-executors, or they can choose to have one person decline to serve as the executor.

If there is no will, or no named executors want to be the executor, then someone must petition to be the “administrator” of the estate. Family members have priority to be appointed as an administrator of the estate, but anyone may petition.

The Probate paperwork asks for basic information about the person who died, or the “decedent.” This includes their birthdate, date of death, and where they were living when they passed away. It also asks for their closest relatives and the approximate value of their estate.

What Assets are Subject to Probate?

A probate estate includes items that are in the decedent’s name only. Joint assets do not apply. They would automatically pass to the other holder of that asset. Assets that have named beneficiaries will also not be included in probate. These are things like retirement accounts, payable on death accounts, and life insurance policies. They will automatically pass to those named beneficiaries.

How Long Does Probate Take?

Probate usually takes between 6 and 18 months. Probate proceedings are public. They are subject to statutory fees set forth in the probate code. This means that probates can be very expensive and time consuming, as well as emotional.

Many times, a California judge will require the personal representative to be bonded. This is especially true if the personal representative for the estate lives outside of California. A bond is like an insurance policy for the probate estate. It protects the estate and the beneficiaries above all else.

To close the probate proceeding, the personal representative must report certain things to the court and the beneficiaries of the estate. They must report about the administration of the estate, the finances of the estate, and how the estate will be ultimately distributed. They must also show that they have followed the probate code statutes that pertain to the estate. Once they have approval from the court to close the estate and distribute assets to the heirs or beneficiaries, the probate may be closed.

Probate is very statutorily driven. There are many specific forms to complete. Hiring an attorney is highly recommended when dealing with a loved one’s estate. We would be happy to help you through this difficult and confusing process.