What Is Probate?
The term “probate” refers to a court-supervised process of determining the distribution of a decedent’s assets and sorting out their final affairs. This can be done through probate court. If the deceased individual had a last will and testament or a trust before their passing, these legal documents would spell out the decedent’s wishes for the division of assets and probate. Surprisingly, about sixty percent of Americans do not have a will or estate plan, according to a survey by the American Association of Retired Persons (AARP).
In California, not every estate must go through probate. Under California law, a deceased person’s estate must enter probate as long as the estate’s total value is more than $150,000. Assets that may pass through probate in California include tangible items such as:
- Vacation residences
- Real estate
- Household goods
The probate process can revive rivalries and cause family disputes and conflicts. Anyone can make the process less complicated by creating a comprehensive estate plan that would help avoid probate or minimize disputes during the probate process.
The Probate Process in California
In order to initiate the probate process, the executor named in the decedent’s will must file a petition for probate. If the decedent died without a will, heirs must ask the probate court to appoint a personal representative or administrator of the estate.
If the will did not name an executor or the deceased person died without a will, the probate court will refer to Cal. Probate Code § 8461 to determine who is entitled to be appointed based on the order of priority.
Once the administrator is appointed, he or she will submit the deceased person’s last will and testament along with a petition for probate to the probate court in the county where the decedent lived. When filing a petition for probate in San Jose, the petitioner must file a filing fee as well.
Then, the executor or administrator must provide formal notices to beneficiaries and creditors and prove the validity of the deceased person’s will, if there is any. The next step in the probate process in California is waiting for the probate court to issue letters of administration, which give the administrator or executor the authority to act on behalf of the estate.
The executor will then need to perform an inventory of all assets for the court to appraise. Once all the bills and taxes have been paid, the executor can ask the probate court to distribute the assets to the beneficiaries.