Probate

    What is probate?
    Probate is the process in which state courts (1) determine the deceased’s heirs, (2) decipher the deceased’s assets, (3) pay the deceased’s debt, and (4) allot the remainder of the deceased’s assets.  The assets are distributed in accordance with either the deceased’s will (if one exists) or as designated by state law.

    How does probate work?
    The court supervises the probate process by appointing an estate executor to pay the deceased’s debt and taxes, ascertain the deceased’s real and personal property, and proper heirs.  If the will designates an executor, the court will normally honor the will and appoint that executor.

    If there is no will, the court will appoint a relative or friend of the deceased as the administrator (same role as executor).  If the deceased had any property jointly owned by a spouse, the spouse will own the property.  However, separate property is distributed according to rules.

    • If the deceased left a surviving spouse, the spouse will receive all the deceased’s separate property only if the deceased left no other heirs (children, parents, siblings, etc.) Otherwise, the spouse will receive one-half to one-third of the deceased’s separate property.
    • The deceased’s heirs will receive the remaining separate property in a specific order: Children ? parents ? siblings (if predeceased then to their children) ? grandparents (if predeceased then to their children) ? spouse’s children (if predeceased) ? spouse’s relatives (if predeceased) ? deceased’s state.

    How long does probate take?
    The process, from the time court proceedings begin until the distribution of assets, usually takes from a year to six months.  However, some estates may take longer.

    What kind of property is not subject to probate?
    According to California law, an estate does not need to be probated if the entire estate is valued less than $100,000, and real property is valued less than $20,000.  That is, an estate must be probated if the deceased owned real estate worth more than $20,000 (what the property is appraised at.)  Also, an estate must be probated if the deceased’s had no real estate or it was worth less than $20,000 BUT the deceased’s personal property plus real estate is worth more than $100,000.

    Also, property that does not necessarily have to be probated, such as retirement accounts, and life insurance, may pass directly to the named beneficiaries.  In addition, some joint ownerships and bank accounts may avoid probate, but they may have tax disadvantages. Thus, they should be planned using an estate planning attorney. Property held in trust is not subject to probate. (see living trust)

    However, if an estate includes the guardianship of minor children, it usually is required to go through probate.