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Brian Neil Burg, Esq.
Fullerton, California

(714) 525-1134

BNBurg@BrianNeilBurg.com

 Member of:
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ESPERANTO PAROLATA
 
Probate
 
This is a court proceeding that is required whenever someone dies and, in California, the value of their "probate estate" is greater than $150,000.  The word "probate" comes from a Latin root meaning "to prove."  The idea is that any will needs to be proven to be legitimate before property can be transferred.  Over the years the term "probate" came to be extended to all situations when a person dies with property exceeding a minimum value, whether or not a will is involved.

To determine if a probate proceeding is required, one needs to understand the meaning of "probate estate."  Unfortunately, in the law, the word "estate" is used in many different contexts.  One is said to have a "taxable estate," a "marital estate," a "nonprobate estate," a "probate estate," a "trust estate," and other estates.  What is considered part of what estate is complicated and differs according to the estate being considered.  For instance, some items may be taxable, but not subject to a probate proceeding.

Basically, a probate estate consists of all property in which a person has an ownership interest at his or her time of death, except for property which automatically transfers by ownership to another individual (such as joint tenancy property); or property that transfers by contract, such as a retirement plan or life insurance with a named beneficiary; or property held in a trust.  The latter point is one of the main reasons that people have trusts: property in the name of the trust is not considered part of the probate estate and thus avoids the probate process (provided all property outside the trust is not over $150,000 in gross value).

In the probate process, the court appoints a person to handle the estate, make reports to the court, and ultimately distribute the assets.  This person is called the "Executor" if there is a will, or the "administrator" if there is no will.  Sometimes you will hear the term "personal representative": this is a general term meaning either an executor or an administrator.  The executor or administrator is entitled to a certain portion of the estate based on a statutory arrangement.  Often there is an attorney who is hired to assist the personal representative in court, and he or she is entitled to the same statutory fees.  Usually a person called a "Probate Referee" will also be needed to appraise the decedent's estate.

Because the probate process requires court supervision and periodic court appearances, as well as formal documentation of the estate and one or more accountings, and there are fees paid to the court, the personal representative, the attorney, and the probate referee (and possibly others), not to mention the potential for substantial delay in effectuating the decedent's intent, many people set up trusts solely to avoid going through the probate process.  However, probate has two distinct positives: (1) the court is in control and there is more protection against unscrupulous parties; and (2) there may be more protection against creditors of the decedent.  In fact, creditors have four months to make formal claims once notice is given of the decedent's death.  The same may not hold for creditors of a decedent who had most of his property in a revocable trust.

The pros and cons of probate is something to be discussed with an estate planning attorney.

 

 

 

 

 

 



 

 

 

 

 

 

     
The information presented on this website is not intended to be a source of legal advice or a comprehensive explanation of the law. You should not act upon or rely on information at this or any other website without the advice of a competent California estate planning attorney, especially if you reside outside the State of California, where we are not licensed to practice law and do not give legal advice. This website is intended for educational and informational purposes only.