Probate is the process through which courts settle estates. If there is no will for the estate, the court will appoint a person, usually, a surviving spouse or an adult child to serve as the administrator or personal representative. If there is a will, it names the person the deceased intended to serve as executor. The executor or administrator of the estate has the legal authority to:
- Gather and value the assets owned by the estate
- Pay bills and taxes
- Distribute assets to heirs or beneficiaries
The purpose of probate is to prevent fraud, determine the validity of wills, identify and appraise property, and ensure that all creditors and taxes have been paid. After all of these matters have been sorted out, the court will issue an order distributing the property and the estate will be closed.
Can I Avoid Probate?
An estate that falls below a certain threshold can be considered a "small estate,” and doesn’t require court supervision to be settled. Additionally, certain assets transfer automatically when a person dies with no probate required. The following are the most common kinds of assets that pass without probate:
- Beneficiary Designations: Retirement accounts and life insurance policies have named beneficiaries. When the policy owner dies, the beneficiaries are entitled to the assets in the account or the proceeds from the policy.
- Payable on Death Accounts/Transfer on Death Accounts: Bank and brokerage accounts can have designated beneficiaries if the account owner fills out the correct forms naming who should receive the account assets after their death.
- Joint Tenancy Assets: When one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset without having to obtain a court order. This is known as "right of survivorship."
- Community Property With Right of Survivorship: This form of property ownership functions like joint tenancy because the survivor owns the entire property when the otherco-owner dies. It is important to note that this is only available for married couples and registerd domestic partners.
If the decedent had a living trust for their largest assets and those assets are actually transferred into the living trust, then that estate also won't go have to go through probate, unless the assets left outside of the trust add up to more than California's small estate limit.
Probate Process in California
Probate courts in California generally use the following procedure to settle an estate:
- The decedent’s will must be filed in the county where they lived.
- A Petition for Probate must be filed.
- A notice must be published in a newspaper where the decedent lived to notify potential creditors of the probate proceeding.
- The court will issue "Letters Testamentary" or “Letters of Administration” to the executor/administrator/personal representative.
- An inventory of all the assets in the estate must be filed with the court.
- After all of the creditors and taxes have been paid, a petition to close the probate must be filed with the court.
- The court will issue an order to distribute the estate's property to the beneficiaries.
Do you have more questions about probate or estate planning? If so, please call the Law Office of Mitchell A. Port at (310) 526-3433 to request your free case consultation.