There is a good chance that, at some point in your life, you will have at least some connection to a proceeding in probate court. In fact, for many people, it is a good deal more likely they will be involved in a probate proceeding than a criminal proceeding. And while we all have images of how a criminal trial goes down from TV and movies – opening arguments, presentation of evidence through exhibits and witnesses, closing arguments, and jury deliberation – most people do not have a clue of what might occur during the probate process. Whether you have an imminent probate proceeding or are simply curious, knowing what the probate process entails can make things easier for you and your family down the line.
The Purposes of Probate
Essentially, a probate court’s job is to make sure that a deceased person’s financial affairs are properly taken care of, and that the parties who should receive whatever assets are in that person’s estate are able to do so. The basic purposes of probate are to:
- Identify the valid will
- If there is no will, identify the proper beneficiaries under state intestacy law
- Make sure that the will was not forged or otherwise fraudulently created
- Pay all valid creditors (including tax authorities) of the deceased through estate funds
- Prepare to distribute the remaining estate assets (if any) to the proper beneficiaries per the terms of the will
What Probate Entails
Once a person dies, then the first question will be whether a valid will existed. If there was a will, then the court will appoint an executor, which can be an executor named in the will itself or some other individual if no such executor is available. If there is no will, then the court will appoint an administrator. For the purposes of this article, we will refer to both as an executor. In California, executors follow guidelines set out by California law and can carry out many of their duties without court approval, although the probate court will be supervising the entire process
Once the executor is named, he or she will begin the process of collecting all of the property within the deceased’s estate (real estate, vehicles, bank accounts, investments, jewelry, etc.) and pay off the debts owed by the estate. Creditors have four months to come forward with claims, which might include credit card debts, mortgage debts, judgments, tax liabilities, and so on. The executor may have to sell property within the estate to fund the payments of debt.
Once this process is completed, the executor will then distribute the remaining assets (if any) to the beneficiaries per the terms of the will. This can be straightforward, but complications can arise when there are:
- Questions over the validity of the will or whether undue influence played a role
- Multiple wills and/or questionable modifications to the will
- Issues regarding the proper identification of specific property to be distributed
- Deceased beneficiaries, divorced beneficiaries, omitted beneficiaries
When Probate May Not Be Necessary
All in all, the probate process can often take around a year, and can be expensive for a person’s estate while causing delay, drama, and uncertainty for hopeful beneficiaries. Probate, however, is not always a necessity in California, such as where:
- The deceased leaves behind a surviving spouse
- The estate is worth less than $150,000
- All the property in the estate transfers automatically outside of probate (e.g. life insurance policies or property held in joint title)
An experienced probate attorney can advise you on your options in the situation of a family member, friend, or benefactor who has recently deceased.
Work with a Pasadena Probate Attorney Can Do For You
Christopher B. Johnson is an estate planning attorney in Pasadena, CA who has helped thousands of individuals and families over the past 18 years in creating and reaching their estate planning objectives as well as in navigating the probate process in California to achieve positive outcomes. Schedule a consultation with him today to discuss your estate planning and/or probate goals.