Header Logo Image

What Is Probate?


Probate is the process where a court is required to distribute a deceased person’s property to either their heirs named in their will. If there is no will and it goes by intestate succession, it is the court process that is used to effectuate those distributions.

What Assistance Do You Typically Provide Your Clients Who Are Going Through The Probate Process?

We represent the administrator or the executor of the estate. If there is a will, it will be the executor; if there is no will, it will be the administrator. Our representation is in their capacity to ensure that all of the estate property is marshaled, inventoried and appraised, properly distributed, all of the claims that are proper get paid, and others are rejected.

Is There More Than One Type Of Probate?

Probate is the judicial process of administering an estate. There is one process for probating an intestate estate, one with no will and another for a testate estate, one with a will. The two processes are essentially the same. There may be a will contest in the probate case where a party is challenging the validity of a will. There could also be a court supervised administration of the trust, which would be the equivalent to a probate. Finally there can be a contest of a Trust or Trust administration, which is in the probate court.

What Factors Generally Set The Stage For Probate To Occur?

The first factor is someone must become deceased. Second is they must own property in California that exceeds the amount of a small estate. A small estate in California is under $150,000 and if there is real property, it has to be less than $50,000 in value (depending on the date of death, the amounts may be lower). If the decedent’s property exceeds those values, then probate is necessary to administer the decedent’s estate. There must be a petitioner willing to begin the probate case.

What Are The Top Misconceptions That People Have About The Probate Process?

The most common misconception is that the state takes a big chunk of the money from the probate. That is not true. The state does not take a portion of the estate, unless the estate is greater in value than the amount exempt from estate taxes. The second most common misconception has to do with reverse mortgages and people believing that if there is a reverse mortgage, they lose the house, the bank gets the house because of the reverse mortgage, and they lose their right to administer that asset. That is also not true. In probate, we treat a reverse mortgage just like any other mortgage on a piece of real property that is to be administered.

Is Probate Necessary?

Probate is necessary if there is property that exceeds the amount for a small estate and that property was not placed in a trust, or some other method was not used to avoid having the probate, prior to the decedent’s death. Property not transferred by the other means named above must be probated to affect a transfer in title.

Does All Of The Deceased Person’s Property Have To Go Through The Probate?

Yes, unless the property is transferred property outside of probate. The most common example of a non-probate transfer is a survivor benefit to a deposit account. If a decedent has a pay-on-death or a survivor named on a deposit account, that account does not go through probate. That account is distributed according to the terms of the contract between the company where the account is held and the decedent. The other example would be, when your estate is less than $150,000, the property would transfer through a small estate affidavit in California.

Are There Options For Avoiding Probate?

There are options for avoiding probate. Those must be taken prior to the decedent’s passing. The main option chosen by most people is a living trust or revocable trust. There are other estate planning tools; there could be a family limited partnership, limited liability companies, corporations, and different combinations of all of those, depending on the size of the estate. Additionally, placing items in an investment that will transfer upon death according to the contract.

Who Are The Main Players In A Probate Case?

The main players in a probate case are the administrator and the administrator’s attorney. They are the two people who do 99% of the work in a probate case. The courts also are involved with the Judge and their probate research attorneys that review all of the documents filed. If there is a sale of real property, then the realtor is also a key player.

For more information on Probate In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 915-8866 today.

California Probate Lawyer Peter Cianchetta

Call To Get Help Now
(916) 915-8866

Related Articles