Probate Law

Ensure Your Estate Is in Good Hands

What is “Probate”?

Probate is the legal process of administering a deceased person's estate. It involves validating their will, identifying and appraising assets, paying debts and taxes, and distributing the remaining assets to heirs and beneficiaries. This process can be intricate and time-consuming, requiring the expertise of a knowledgeable probate lawyer.
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What is a Decedent’s Estate?

“Decedent’s estate” is a formal way of referring to property left when a person dies. The “decedent” is the person who has died, and their “estate” is the property they owned at the time of death. In California, a decedent’s estate can be distributed in one of three ways: as a “small estate” under $166,250, in probate court as an independent probate proceeding (when the decedent left a will naming an executor), or in probate court as a court-supervised estate (when the decedent did not leave a will or name an executor).

Does Every Estate Have to go Through Court?

If there is little property in the estate, or the person planned their estate to avoid probate with a trust or other probate avoidance tactics, court may not be necessary.

What is the Procedure if There is a Will?

If the decedent left a will, it usually names a person to be the personal representative of the estate, called an “executor.” Unless the will expressly prohibits the procedures authorized by the California Independent Administration of Estates Act (a rare occurrence), the executor is responsible for conducting an inventory and accounting, distribution of the estate’s assets, and paying the estate’s debts and taxes. This is known as an “independent probate proceeding,” because the executor has full authority over the estate and can make decisions without court supervision.

What if the Decedent Left No Will Or the Will Did Not Name An Executor?

If there is no will, the probate court will appoint an administrator. If there is a will but it does not name an executor, the court will appoint an “administrator with will annexed.” Like the executor, the administrator is responsible for completing all the requirements to distribute the assets of the estate, with one important distinction: the administrator has only limited authority to carry out the administration of the decedent’s estate and requires court approval before undertaking certain actions. This type of proceeding is known as a “court-supervised estate.”

What if the Decedent Had a Trust?

When the trustee (or, in the case of a joint spousal trust, the second trustee) dies, a successor trustee takes over and distributes the property according to the terms in the trust document. The trust document itself should name the successor trustee. To establish their authority over the decedent’s property, the successor trustee provides businesses and agencies with a death certificate, an affidavit, and/or the trust documents.

Real Estate Transfers Without Probate

Special non-court procedures apply if the real estate is in a trust, owned by more than one person (joint tenants or community property), or covered by a Transfer on Death (Beneficiary) Deed.

Small Estates (Under $166,250, No Real Estate)

If the deceased person did not own real estate (or any real estate is transferred outside of probate), property like bank accounts, insurance, property in storage, and the like can be collected by the heir using a notarized Small Estate Affidavit (also called an Affidavit for Collection of Personal Property), without going to court at all. Vehicles and some mobile homes may be transferred by using DMV forms.

What Are the Different Ways an Estate Can Be Transferred After Someone Dies?

It depends. There are some ways that do not involve going to probate court.
Here are some common examples:
  • If a particular asset (like a retirement plan, life insurance policy, or a bank account) already has a named beneficiary, that asset goes to the beneficiary (or beneficiaries, if there are more than one) without going to court.
  • If a house is owned by two or more people as joint tenants, the other owners have the right of survivorship, which means that they inherit the entire property in their name.
  • Real estate sometimes can be transferred without court with a transfer-on-death deed (also called a beneficiary deed).
  • Property in living trusts can be transferred without going to court.

As discussed, there are also some simplified procedures for estates that are under $166,250.  
Any portions of the estate that can’t be transferred more informally will likely have to be dealt with in probate court. How the estate is dealt with will partly depend on whether the decedent died with a will or without one.
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