executor would then take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries. If you were to die intestate (i.e., without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator or personal representative to handle your estate. Simpler procedures are available for transferring property to a spouse or domestic partner or for handling estates in which the total assets amount to less than $150,000.

 

The probate process has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests.

 

There are a number of disadvantages to probating an estate.  One disadvantage is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well -- a probate proceeding generally takes longer than the administration of a living trust. Every probate estate is unique, but most involve the following steps:

 

  •  Filing of a petition with the proper probate court.

  •  Notice to heirs under the will or to statutory heirs (if no will exists).

  •  Petition to appoint executor (in the case of a Will) or administrator for the estate.

  •  Inventory and appraisal of estate assets by executor/administrator and the California Probate

     Referee.

  •  Payment of estate debt to rightful creditors.

  •  Sale or liquidation of estate assets. 

  •  Payment of estate taxes, if applicable.

  •  Final distribution of assets to heirs.

 

Q: Does Probate administer all property of the deceased?

 

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. Certain types of assets are what is called “non-probate assets” do not go through probate. These include things such as:

 

  •  Property in which you own title as “joint tenants with right of survivorship,” which passes to

     the co-owners by operation of law.

  •  Retirement accounts such as IRA and 401(k) accounts where there are designated

      beneficiaries.

  •  Life insurance policies.

  •  Bank accounts with “pay on death” (POD) designations or “in trust for” (ITF) designations.

  •  Property owned by a living trust, which passes to successor trustees without having to go

     through probate.

 

ESTATE ADMINSTRATION & PROBATE

 

Q: What is Probate and why does everyone want to avoid it?

 

Probate is a court-supervised process for transferring a deceased person's assets to the beneficiaries listed in his or her will. Typically, the executor named in your will would start the process after your death by filing a petition in court and seeking appointment. Your 

  LAW 

    WILLS    TRUSTS    ESTATES

PRATT

                .                .

750 Menlo Avenue, Suite 200
Menlo Park, CA 94025
650.485.1771
analisa@analisapratt.com
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