Probate 101

probate 101

Probate is a legal process designed to efficiently and effectively distribute assets and transfer titles and properties to heirs and beneficiaries. In our Estate Planning Glossary, we explain the term probate as follows: 

If you don’t have a will or trust in place, your estate will be transferred to the state, where it is distributed in accordance with the state’s probate laws. Probate courts are also used to settle disputes about a will’s authenticity or to honor the rights of an omitted heir. 

In the world of estate planning, we work hard to help people avoid having to go to probate court by establishing legal estate plans that are administered by a legal professional or a designated trustee/executor, which keeps things out of the courtroom.  

Probate Basics: What You Need to Know 

In this Probate 101 post, we want you to know the probate basics. In addition to helping you determine what you need to establish your estate plan, the following information can help shape conversations with your parents, grandparents, and other elderly relatives.  

Conversations about estate planning and probate can be sensitive and heated. However, it’s important to remember that not everything in estate planning is about “who gets what.” Some of the most important probate and estate planning topics have to do with who will make certain decisions if a person becomes incapacitated, who will take care of pets or dependent children in case of an emergency (durable power of attorney, medical directives, etc). 

Probate Serves Three Main Purposes 

If a person has a will, trust, and/or comprehensive estate plan in place, probate takes place outside of the court system, under the direction of the estate attorney and/or the stated trustee/executor. If there is no will in place, probate is handled by the probate court system, which can be much more involved, costly, and emotionally draining for heirs and beneficiaries. 

In either case, the estate moves through probate, and that process serves three main purposes: 

  • It takes inventory of – and tallies the value of – all properties, assets, financial accounts, owned by the deceased (referred to as the “decedent”).  
  • Pays all existing and continuing bills, debts, taxes, related probate fees, and any monies owed until the probate process is complete 
  • Distributes remaining assets according to the estate plan. If there is no estate plan in place, the estate moves through the probate court and the court distribute assets and properties following a very specific, probate standard that determines heirs/beneficiaries 

Steps Taken By Probate Court 

If the estate goes through the probate court, the court proceeds in very specific steps: 

Validate the will

If there is a will, and a trustee/executor is named in the will or estate plan, the courts validate the will and the trustee/executor handles the rest.  

If there is no will in place, the court takes over and applies what we call “intestate laws,” which are the laws that were created to distribute assets and properties according to the legal precedents in place. 

Appoint an Executor (or Administrator)

The court will appoint an administrator if there is no will. Who the court appoints depends on multiple factors. Most typically the court names a surviving spouse, domestic partner, or child as the administrator. However, depending on the potential administrators’ location, abilities, and interests, a more distant relative may be appointed.  

Other legal stipulations around court-appointed probate administrators are that the individual must be a legal adult, a legal resident of the United States, and cannot be a business partner if other interested parties object. 

NOTE: It’s important to note that being appointed the administrator does not mean s/he gets to decide how the estate is settled. The courts are very clear about who gets what, in an automatic chain that goes from a surviving spouse, down to children and grandchildren, and so on. The administrator must adhere strictly to the probate court’s stated formula. 

Manage all of the estate assets

During the probate period, the administrator is responsible for overseeing and managing all of the estate assets (including properties/real estate) and financial accounts. This includes paying the bills, paying taxes, etc. 

Settle estate debts

Nothing can be distributed or inherited until all of the estate’s debts are settled. The administrator must certify all creditor claims and settle the debts accordingly in a timely manner. If there are not enough funds in financial accounts to pay existing debts, other assets or real estate must be sold to pay the debts. 

Approve the final distribution of the estate

Finally, it’s time to distribute the remaining estate. As we mentioned above, the administrator doesn’t get to make decisions about who gets what. It is his/her responsibility to divide the assets and distribute them according to the court’s stated guidelines. In some cases, this is as simple as passing the estate to the surviving spouse. Other estates may be more complicated. 

If there is any dissension or argument amongst the potential heirs/beneficiaries, the administrator must bring them to the court’s attention and the probate judge would have the final say. This is where things get messy and why we recommend creating a will and/or estate plan no matter how “simple” or “small” your estate may seem. 

Read, Am I Too Young to Create an Estate Plan, and, Isn’t Estate Planning For the Rich for more information about why everyone needs some type of estate plan in place. 

How Long Does Probate Take? 

There is no one answer to this question. In the state of California, the average probate case takes about nine months from start to finish, and it is not unusual for the process to take as long as a year and a half or more.  

This sounds like a long time but you must remember that: 

  • Creditors have up to four months or so, and at least 60-days after they receive notice that the estate was opened, to file their claim on an estate  
  • Potential heirs/beneficiaries have up to 120 days (or more, depending on the situation) to contest a will or the administrator’s proposed estate settlement 
  • Being an administrator is no easy task, especially if the role was unexpected. While s/he has to stick to a certain timeline, it is also understood that work, personal, and family obligations may slow down the estate settlement process. 

Work With a Probate Lawyer to Expedite the Process 

If you find yourself with a deceased family member whose estate must go through probate, we recommend consulting with a probate lawyer. Their no-obligation consultation can provide a wealth of helpful information and answer key questions or concerns you may have.  

Unless an estate is incredibly straightforward, it is almost always in a family’s best interest to hire a probate lawyer. An experienced probate lawyer expedites the probate proceedings and will earn the fees back for you in saved taxes, potential penalties, and drawn-out time periods that accrue more debts, expenses, taxes, and other fees that diminish the estate’s value. 

Contact Tseng Law Firm to learn more about the probate process and how we can help you.