If a person dies without a will or a trust (the decedent dies intestate) then the decedent's property will pass to the decedent's closest relatives (heirs) in the following order: surviving spouse, children, parents, siblings, and then more distant relatives. If the decedent owned a home or other real property which is not held in joint tenancy (joint property ownership), and the heir is not the surviving spouse, then the decedent's estate must be probated for the property to pass to the heirs. If the surviving spouse is the heir, then there is a simplified probate procedure called a "Spousal Property Petition".
The cost and the procedure to probate the estate of someone who dies without a will is the same as for someone who dies with a will.
Probate is the procedure by which a person who has died leaves their wishes, in a will or testament (if one has been prepared in advance), to distribute their personal property assets to whomever they choose to.
Probate simply means the deceased's last written directives are legally certified as the final statement of their wishes. This is in regards to their worldly possessions, including any property or properties they may have owned.
Probate also confirms the appointment of a person (personal representative/executor), as selected by the deceased, to administer their estate.
It refers to the entire process that gathers all of the available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.
The duration of the probate process is subject to lots of different variables. Some may include locating the heirs and beneficiaries, a contest of the will, claims or liens against the estate that remain unsettled, dissatisfaction regarding the actions of the personal representative by the heirs, to name but a few. The general rule of thumb is approximately six months to a year.
When Probate is necessary, someone must come forward to start the process. If there's a will, the executor named in the will should initiate this. If there's no will, or the person named to serve as executor isn't able, then usually the court is asked to be appointed as the "administrator" of the estate.
First, the executor files the will, along with a document called "Petition for Probate," with the probate court in the county where the deceased person lived. There is a filing fee of about $435. Some other forms may need to be filed as well, and formal notices need to be given to beneficiaries, family members and creditors. The will, if there is one, must be shown to be valid; usually this is done by having the witnesses sign a sworn statement that's submitted to the court. When everything is in order, the court issues "Letters Testamentary" or "Letters of Administration," appointing an executor and granting that person authority over estate assets.
Once the executor has this authority, the process of gathering the deceased person's assets can begin. The executor has to get organized, setting up a filing system so that benefits and bills aren't overlooked. The executor must apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile, and file with the court, an inventory and appraisal of all probate property. This does not all have to be done at once and the executor can always get help from an attorney who understands the process.
Most probate cases in California are handled under the state's Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court. The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts—for example, selling real estate—require court approval.
During the probate process, it's the executor's job to keep all assets safe. For example, a house must be insured and maintained. The executor is also responsible for filing tax returns for the deceased person and for the estate.
In California, creditors have four months to come forward with their claims. Many estates don't receive any formal claims from creditors; instead, the executor simply pays outstanding bills. If there isn't enough money to pay all valid claims, claims are to be paid from estate assets. Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That's when the executor can distribute all the estate assets to the people who inherit them.
Probate is not always necessary. But if you sell a house before probate begins—and you don’t have the authority to do so - you could face legal consequences, such as a lawsuit brought by other beneficiaries or even criminal charges, such as larceny and fraud.
People often assume that if they have a will, they can avoid probate, but that’s not always the case. Filing a will makes it public record, but probate begins the legal process that the court oversees to carry out the will.
That being said, the following estate assets usually do not need to be probated in California for example: small estates under approximately $166,000; property passing to a surviving spouse; property held in a living trust; joint tenancy property; accounts with pay on death beneficiaries (POD) such as bank accounts / Individual Retirement Accounts (IRA) / Life Insurance / Pension Funds and Brokerage Accounts; vehicles owned by the decedent. Assets inherited by the surviving spouse or registered domestic partner can also be transferred with a streamlined procedure, using a document called a Spousal (or Domestic Partner) Property Petition. The probate court is involved, but the process is simple and quick.