Probate is the legal process that is typically required after someone passes away. Probate serves several purposes, the most important of which are to ensure that the decedent’s assets are identified and distributed to the intended beneficiaries and/or heirs as well as to allow creditors the opportunity to file claims against the estate.
Some type of probate is usually required; however, for small estates, formal probate may not be necessary. Estates valued at less than $150,000 may not require formal probate; however, because of the complex nature of California’s probate laws and rules you should consult with an experienced probate attorney to determine what type of probate, if any, is required.
If the decedent left behind a valid Last Will and Testament the individual named as Executor in the Will oversees the probate of the estate. If the decedent died intestate (without a Will), a spouse, friend, or family member usually volunteers to be the Administrator of the estate. If no one volunteers, the court will appoint an Administrator.
Some assets bypass the probate process altogether, meaning they can be distributed to the intended beneficiaries right away. Common examples of non-probate assets include:
- Asset held in a trust
- Proceeds of a life insurance policy
- Assets held in a “payable on death (POD)” account
- Certain types of jointly held property
Several factors will determine how long the probate process takes; however, creditors of the estate have up to four months from the time the Personal Representative (Executor or Administrator) was given the authority to proceed with probate to file a claim. Consequently, probate typically takes a minimum of six months to complete. For larger estates with valuable and/or complex assets, or for estates that are challenged, the probate process can easily take more than a year to conclude.
The law does not require you to retain an attorney; however, given the complexity of the process, the ease with which an error can be committed, and the importance of what it is at stake, most Executors/Administrators choose to retain an experienced probate attorney to assist them during the probate process.
If the decedent failed to execute a valid Last Will and Testament prior to his/her death the estate is referred to as an “intestate” estate. In that case, the California laws of intestate succession govern the disposition of probate assets. Typically, it means that only a spouse and/or close relatives will inherit from the estate.
Although every estate is unique, there are some common steps in the probate of most estates, including:
- Identifying, locating, and valuing estate assets
- Opening probate
- Authenticating the Will
- Identifying legal heirs in an intestate estate
- Notifying creditors
- Reviewing creditor claims
- Litigating and challenges
- Paying estate taxes
- Transferring and distributing assets to beneficiaries and/or heirs