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Biddle Law Estate Planning Blog

Monday, July 31, 2017

What is Probate?

When someone dies, he or she likely needs to wind up his or her financial and legal matters. They rely on others and any plans that they have created before their passing to complete this task.

“Probate” is a legal term that describes the process of winding up someone’s affairs after their death. The term “probate” comes from a similar Latin word that means “to prove.” During the probate process, an executor will engage in efforts to establish that the deceased person’s will is valid. This process is often referred to as “probating a will.” If there is no will, then an administrator will perform a similar function in accordance with California intestate laws.

A Brief Outline of the Probate Process

If the decedent has a will, then the executor will often come forward to start the probate process. If there is no will, a family member can petition the court to be named as the administrator of the estate. Although these individuals are appointed differently, they perform the same function for the decedent’s estate. Both processes start by letting the court know that someone has passed and he or she needs their affairs wound up.

The executor needs to go through the extra step of proving that a will is valid. Generally, this process is straightforward and only requires some simple paperwork. However, if the will is challenged, the probate process can become complicated very quickly.

After the executor has proved up the will, he or she will gather all of the assets that the decedent owned at the time of his or her death. The executor will maintain the estate during the probate process, including paying ongoing debt obligations and keeping up with regular maintenance of property and assets. The executor will also compile an inventory and appraisal of all of the property and file this information with the court. Then, the executor will pay outstanding debts and distribute remaining assets to those who are designated in the decedent’s will.

The administrator has the same function, but the distribution of the property will depend on California intestate laws instead of instructions provided in a will.

Assets that Will Not Have to Go Through Probate

Not all of the decedent’s assets will have to go through the probate process. Instead, there may be other mechanisms for that particular property to be distributed. For example, if the decedent owns property in joint tenancy with someone else, there is no need for that property to be probated. Instead, it will automatically revert to the other person’s ownership upon the other person’s death. 

Any account that has a payable-on-death provision can also avoid the probate process. Living trusts and life insurance also do not need to be probated. Some small estates can avoid the probate process altogether as well.

The probate process can be expensive and time-consuming, which is why many people strive to avoid the process in its entirety through careful estate planning.

Getting Legal Help with the Probate Process

The probate process, including which assets should be included and which should not, can be extremely complicated. It requires a great deal of time and effort, which can be overwhelming for some executors or administrators.

Thankfully, probate attorneys like Alexander Biddle can help with this process and ensure that you are carrying your obligations as an executor or administrator. Contact our firm today to learn more about the probate process and how we can help make the progression go much smoother. 


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Biddle Law is located in San Mateo and Belmont and services San Mateo County including San Carlos, Burlingame and Foster City.



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