What is probate?
Probate is the judicial procedure by which a decedent’s estate is administered and title to assets is transferred from the decedent to the beneficiary. The Court’s job is to establish that a Will is valid (if you have a Will), and then supervise the distribution of your assets by ensuring that your assets are properly accounted for, that creditors get paid (if you have outstanding debts), and that the balance of your Estate reaches your Beneficiaries. The process is governed by the California Probate Code.
Named executor of a will?
If the estate contains probate assets, you will likely need a court supervised Probate proceeding.
If you have been named Executor of a Will and want to act as Executor, you must first file the Will and a Petition for Probate with the Court. If the Petition for Probate is approved, the Court will issue an Order and Letters Testamentary. These documents will provide the Executor with the legal authority to carry out the probate administration. Obtaining an Order and Letters Testamentary will only occur after a Petition for Probate has been filed and a noticed hearing has taken place.
After the Petition for Probate has been granted, the Executor must provide proper notice of the probate administration. Once the Notice to Creditors period has passed, a Report and Accounting to the Court must be filed. An appraisal from a Probate Referee will likely be required. The Report and Accounting will require a new noticed hearing. When an Order is obtained after the hearing, the Executor will make distributions. Many Executors retain a reserve for potential tax liabilities and distribute the amount later after it is established there are no more debts of the estate.
What if there is no will?
When there is no Will, the estate is considered “intestate” and must still pass through Probate. Rather than an Executor, there will be an Administrator appointed. The California Probate Code sets out how the estate will be distributed (who the beneficiaries will be).
Why do people want to avoid probate?
Through Probate, your Will becomes a public record. Additionally, every step of the distribution of your estate is monitored by the court, which creates a very lengthy process. Furthermore, mandatory fees are paid out of the estate, which are established by California Probate Code Section 10800. The amount of fees are based on the gross value of the estate, and do not take any debt into account. In addition to the statutory fees set by the Probate Code, there are filing fees and appraisal costs. In short, Probate is expensive, time consuming, and a matter of public record.