Probate is how an estate gets settled under court supervision. When someone dies intestate (without a Will), the court will appoint an individual (usually an adult child or surviving spouse). However, if there is a Will, it may contain a nomination for an individual to appoint as an executor of the Will. This individual has authority under the law to gather and value the assets of the estate, pay taxes and bills, and distribute the assets to the named beneficiaries of the Will (those to whom the decedent assigned an asset to be left to).
What is the Purpose of Probate?
The purpose of probate is to prevent the occurrence of fraud after someone has passed away. Essentially probate “freezes” a Will until a judge can look and determine whether the Will is valid. This also includes that the right people have been notified and that all property of the estate has been observed and appraised, and that all taxes and creditors have been paid. Once this has been completed, the court will issue an Order that distributes the property and officially closes the estate.
Not All Estates Go Through Probate
Luckily, not all estates must go through probate. If an estate is below a certain size it is considered to be a “small estate” and does not require court supervision. Additionally, not all assets require probate. Some will transfer automatically. Some of these assets include:
- Beneficiary Designations
- Community Property with the Right of Survivorship
- Joint Tenancy Assets
- Payable of Death Accounts
- Tenancy by the Entirety
- Transfer on Death Accounts
Another manner in which an estate will not go through probate is if a decedent had a Living Trust to hold the largest assets. So long as the assets aside from the trust do not add up to more than the cap for a “small estate.” In fact, the point of a Living Trust is to help avoid probate after the Grantor’s death.
To settle a probate in California certain conditions must first be met:
- The Will must be filed in the county in which the decedent lived.
- A Petition for Probate must be filed.
- A notice must be published in a newspaper where the decedent lived
- The Court issues “Letters Testamentary” to the executor to give him or her the legal authority to act.
- The estate assets must be inventoried and filed with the court.
- Taxes and creditors are paid and then a Petition to close the probate must be filed with the court.
- The Court will then issue an Order, which permits the distribution of the estate’s assets to the beneficiaries.
- Finally, the executor is permitted to recover fees for their services, though these fees are subject to income tax.
Biddle Law Can Help!
If you or a loved one is in need of an estate-planning attorney, Biddle Law can help. To learn more about the probate process or to schedule a consultation, visit us online or call us at 650-532-3470 today!