Probate Frequently Asked Questions

When an individual dies, that person leaves behind an estate consisting of all assets owned by the decedent at the time of death. Probate is the legal process that ultimately leads to transferring those assets to the intended beneficiaries and/or heirs of the estate.

Formal probate is not always required. In the State of California, a simplified method of transferring estate assets may be available if the estate assets are valued at less than $150,000 and they do not include real property, such as a house. If you are legally entitled to inherit the property, and the estate qualified, you may be able to use an affidavit to transfer ownership of the assets to you.

No. One of the first things that must be done during the probate process is to determine which assets are probate assets and which assets are non-probate assets. Non-probate assets bypass the probate process and may be distributed to the intended beneficiary immediately. Common examples of non-probate assets include:

• Assets held in a trust
• Proceeds of a life insurance policy
• Certain types of jointly help property
• Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation
• Certain retirement, pension accounts

When someone dies without leaving behind a valid Last Will and Testament, the individual is said to have died “intestate.” Dying intestate does not avoid probate. Instead, the assets in an intestate estate are distributed according to the California intestate succession laws, meaning only close relatives will inherit from the estate in most cases.

If the decedent left behind a Will, the individual named as the Executor in the Will is in charge of administering the estate during the probate process. If the decedent died intestate, any competent adult may volunteer to be the Personal Administrator if the estate. If no one volunteers, the court will appoint someone.

Although no two estates follow the exact same path through the probate process, there are some common steps, including:

• Identifying, locating, securing, and valuing estate assets
• Opening probate – usually in the county in which the decedent was a resident at the time of death.
• Notifying creditors that probate is underway.
• Reviewing creditor claims and approving or denying each claim.
• Calculating and paying any state and/or federal tax due.
• Transferring the remaining assets to the intended beneficiaries/heirs of the estate.

The amount of time it takes to get through the probate process can vary widely in California; however, it will take at least four months because creditors are given that long to file claims against the estate. As a general rule, the more valuable and/or complex the estate assets are, the longer it takes to probate an estate.

When the decedent’s Last Will and Testament is submitted to the court for probate, any interested party has the right to challenge the validity of the Will by filing a Will contest. Contrary to popular belief, a Will contest cannot be filed solely on the basis that the contestant is unhappy with his/her inheritance (or lack thereof). If a valid Will contest is filed, the Personal Representative of the estate must defend the Will throughout the ensuing litigation. Basically, the probate process comes to a halt while the contest is litigated. If the contest is successful, the Will is declared invalid and the court looks for another valid Will or the estate is probated as an intestate estate. If the contest is unsuccessful, probate resumes using the Will submitted to the court.

The probate process can be a lengthy, and complex, process that involves a number of legal and financial concepts with which the average person may not be familiar. For this reason alone, most Personal Representatives do retain an experienced estate planning attorney to help them during the probate process.