|What is Probate?
|Goals of the Probate Process
In general, all steps in the administration of the estate are directed toward three goals:
|What Comprises the Estate?
All property owned by an individual makes up his or her estate. The estate can consist
of real property, household belongings, bank accounts, retirement accounts, investment
accounts, stocks, business interests and insurance policies.
Transfer of the Deceased’s Property
When an individual dies, some legal vehicle is required to transfer ownership of their
property. If certain conditions exist, that legal vehicle is the formal probate process.
This means that the Court will ultimately issue an order authorizing conveyance (or
transfer) of the property of the decedent to the decedent’s heirs. (Who is entitled to the
deceased individual’s property is dealt with below.)
How Long Does it Take?
A formal probate process in California can take six months to a year. Typically the
time required is closer to a year and may even take eighteen months. Time is required
to file the legal documents with the court, gather all of the decedent’s assets, pay the
decedent’s debts, pay taxes for the decedent and the estate (if required), and make
distributions to the heirs.
What are the Costs?
The costs for probating an estate increase yearly with changes in the law, and with
increased court costs. A detailed look at the costs of probating an estate are
forthcoming on another page on our website which is under construction.
Did the Decedent have a Will?
One of the first steps taken in the probate process is the determination of whether the
decedent had a properly executed will (a will that is legally valid and recognized by the
courts.) If a legally valid will was left by the decedent, the decedent’s estate will be
passed to the persons named in his or her will (called heirs). An individual has the right
to leave their possessions or property to whomever they wish. Often persons named in
a will are the individual’s family—children, brothers, sisters, grandchildren, close
friends. The heirs need not be family or friends, however. Individuals may desire to
leave their estate to a charitable institution, an educational institution, or any other
number of recipients. The will must expressly state to whom the individual wants their
estate to pass. When the probate process is completed, the heirs will have ownership
of those assets left to them by the decedent (after debts and taxes are paid).
If the Decedent did not have a will, but died intestate, the statutes, or laws, of California
determine to whom the decedent’s estate passes. Those laws are known as the “laws
of intestate succession.” There are many variables that determine to whom the assets
pass and the variables are far too complex for the purposes of this discussion. Suffice it
to say, in some situations, the person who has priority over ownership of the assets may
be the spouse, the children, or the parents of the deceased individual.
Fewer than one-third of individuals in the United States who die
every year, die with a will. Therefore, for two-thirds of the
population, state laws determine who receives the belongings of a
deceased person. And the laws vary from state to state.
The Personal Representative
In the formal probate process the person who will manage the estate, collect the assets,
pay the debts, pay the taxes and distribute the balance to the heirs must be appointed
by the court. The actual process involves the filing of a petition by an individual who,
via the petition, requests that the court appoint him or her as the personal
representative. The courts prefer to follow the wishes of the decedent. Therefore if the
decedent died with a will, and the will names a personal representative (called an
executor if named in a will), the court will often appoint that individual to serve as the
personal representative. If the decedent died intestate or died with a will but failed to
name a personal representative, then there are laws that set forth the priority the courts
must give to various individuals as to who is appointed. In California, the person with
highest priority may be the spouse, child, or parent, depending on the particular
Once a personal representative is appointed by the court, that person has the legal
authority to take control of the decedent’s assets. For instance, the personal
representative can access the decedent’s personal bank accounts, stocks, and collect
on insurance policies.
There are laws that guide the actions of the personal representative and by filing a
petition for appointment, the personal representative has submitted themselves to the
jurisdiction of the court. The Court oversees the administration of the estate and may
approve or disapprove of the personal representative’s actions. The laws are fairly
comprehensive and cover all areas of estate administration. For example there are
particular actions that must be taken to sell personal or real property of a decedent and
there are some situations where the personal representative must obtain the court’s
permission before undertaking a particular action.
The personal representative, in addition to be entrusted with authority and the ability to
act as an agent of the estate, also has obligations and duties that are set forth in the law.
The primary duty of the representative is to protect the estate and ensure that it is
transferred to the individuals who are entitled to it. If the personal representative
violates their duties they may be removed as a representative or may even be
surcharged and required to pay a fine to the estate. There is personal liability involved.
So, while the position of personal representative gives an individual authority over
someone else’s estate, it confers very particular responsibilities.
The amount of work that must be done by the personal representative depends on
many factors, including the size of the estate, the character of the assets, records left by
the decedent, debts of the estate, whether estate taxes must be paid, etc. It can be a
very complicated and burdensome job. Partly for that reason, the law provides that the
personal representative be compensated. The law sets forth statutory fees to which the
representative is entitled. Those fees are based upon the size of the estate and are
found in the California Probate Code. The representative may forgo compensation, but
is entitled to it if they so desire.