Probate Law
Probate is the legal process that culminates into the validation of a deceased person’s will by the court or determining that he or she died without one (intestate). The court, as part of the probate, will appoint someone to handle and manage the assets, both real and personal, of the deceased person. Depending on certain circumstances, that person is called the executor, administrator, or administrator with the will annexed. The end result is to “settle” the deceased’s person’s properties in such a manner that persons named on the will are given what the Will provided for and creditors of the deceased person are equally taken care of.
The executor’s job will probably last six months to a year. First, the executor files the Will, along with a document called “Petition for Probate,” with the probate court in the county where the deceased person lived. Some other forms may need to be filed as well, and formal notices given to interested parties. The will, if there is one, must be shown to be valid; usually this is done by having the witnesses sign a sworn statement that’s submitted to the court. When everything is in order, the court issues “Letters Testamentary” or “Letters of Administration,” appointing an executor and granting that person authority over estate assets.
Once the executor has this authority, the process of gathering the deceased person’s assets can begin. It’s also the time for the executor to get organized, set up a filing system so that benefits and bills aren’t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile, and file with the court, an inventory and appraisal of all probate property.
The Independent Administration of Estates Act is the governing law in California. An executor is able to take care of most matters without having to get permission from the probate court. (Cal. Probate Code § 10400 and following). The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts—for example, selling REAL ESTATE—require court approval.
In California, creditors have four months to come forward with their claims. Many estates don’t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example). If there isn’t enough money to pay valid claims, however, state law sets out the order in which claims are to be paid from estate assets.
Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That’s when the executor can distribute all the estate assets to the people who inherit them.
Spousal Property Petition Under California law, there is a simplified legal process called a “spousal confirmation hearing” where a petition is filed with the court. A notice is sent to certain interested parties, and the court assigns the assets to the surviving spouse unless there is an objection. Only a married couple can rely on this process.
Assets Involved with Probate
Probate isn’t involved or necessary for every asset that someone owns when he or she dies, but it is regularly used for the following assets:
- Assets that were held in only the deceased’s name
- Half of each asset that was registered with his or her spouse as community property
- That portion of any asset that belonged to the deceased that he or she held as a registered tenant in common with other people
- Any assets, including such things as jewelry, art, furniture or the like, that are not registered
Assets Excluded from Probate
Not everything is subject to probate. Although probate may be required for a portion of someone’s estate, the following assets can avoid the probate process:
- Assets that are held in joint tenancy
- Assets that are held in a living trust
- Assets where a beneficiary is named, such as IRA benefits or life insurance policies
- Assets held in a bank or credit union where the deceased was named as a trustee for another person
- Assets that were registered in the person’s name that are “payable on death” or “transfer on death” to another person
- Assets registered by a married couple as community property with the right of survivorship
- All assets that go to a surviving spouse, including any assets the person who died owned separately in his or her name but were left in the will or by intestate succession to the surviving spouse