What is probate?

Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will, or, if a person dies without a will, to the person’s intestate beneficiaries. The intestate beneficiaries are established by the California Probate Code and are typically your closest relatives.

The assets that are subject to probate are normally identified by eliminating what is not subject to probate:

Assets held in a living trust are not subject to probate;
Joint tenancy assets are not subject to probate because they become solely owned by the surviving joint tenant;
Pay-on-death or transfer-on-death assets (such as life insurance, annuities, IRAs, 401(k)s, and bank or brokerage accounts with designated beneficiaries) go to the beneficiaries the decedent named with the company or custodian, and will not be subject to probate. On the other hand, if the decedent has named his or her estate as beneficiary, or if there are no then-living beneficiaries designated, these assets will be subject to probate;
Assets passing to a surviving spouse;
Estates that are worth less than $150,000 (gross) may pass to its beneficiaries through simpler “small estate” procedures rather than through full probate administration.

Usually, the executor named in the will starts the process after your death by filing a petition in court and seeking appointment. If one dies without a will, a beneficiary or other interested person can start the process, in which case the court appoints an administrator to handle the decedent’s estate.

The executor or administrator typically does these things: takes charge of the decedent’s assets, prepares an inventory, sends out notices to taxing authorities and potential creditors, liquidates assets that will not be distributed in kind, prepares the decedent’s outstanding tax returns, pays taxes and debts, and after receiving court approval, distributes the rest of the estate to the decedent’s beneficiaries.

In the estate administration context, we would normally assist the executor or administrator throughout the probate administration by preparing the initial petition, guiding the executor or administrator through the legal requirements, preparing the petition for distribution, and assisting with the distribution of the estate.

If you have sought our assistance with estate planning, we will discuss whether you want your estate plan to be arranged so that your estate avoids probate or goes through probate. Probate administration can be valuable if you believe that distribution of your estate will lead to disputes or if you have no one that you can trust to administer your estate privately through a trust. On the other hand, probate administration is a public process, is typically time consuming and slow, and will likely be more expensive than trust administration.