Probate ProcessWhen you pass away, it’s highly likely that your estate will pass through the probate court, even if you have a will drafted. If you don’t have a will then your heirs will have to duke it out against state law in the probate court. Familial issues you thought you laid to rest years ago are going to resurface the moment you find yourself as an adversary to someone in your family.

Probate isn’t all that bad… if you like spending your own money to determine who you are going to give your stuff away to. Probate is like suing yourself using your own money to determine how much you are going to give someone else.

If you find yourself mixed up in the probate process this article will cover some of the basic information.

What Is Probate and the Probate Process?

Probate is a legal process primarily designed to transfer ownership following a death. It involves settling your estate and determining the validity of your will, if you had one. If you don’t name an executor in your will, probate allows for the appointment of a court representative or administrator who can handle executor duties. Probate also involves the adjudication of disputes that arise from your estate (remember when accidentally hit your brother with a nerf gun? It just came back up again). The probate court is the branch of the court that deals with estate settlement and which oversees the probate process.

The Steps of the Probate Process

The probate process has four major steps.

  • Filing of formal paperwork to notify the court of the death, clarify who will act as executor or administrator, and formalize estate proceedings

If you have not appointed an executor in your will, individuals who want to act as your executor may come forward and apply to be the executor, explaining their relationship to you and why they wish to take on the executor responsibilities. If no one wants to come forward, the court appoints someone to act for you. This is good from the standpoint that the administrator is objective regarding the estate, but negative in that lack of familiarity with your estate may delay distribution of assets or other property slightly. In some cases, the state administrator may refuse to act if there is no money in the estate for them to get paid. The court can continue to wait it out until someone in the intestate succession steps up.

  • Validation of the will, if any, compiling a list of all property, assets and other issues the executor needs to handle

The court looks at whether there is a will for your estate. If there is, they verify the will was properly signed by witnesses and dated. They compare it to other versions of your will that might exist to determine which will is the most recent. If you did not make a will, the court will distribute your assets and property based on current property law and intestate succession.

California recognizes formal wills (in someone else’s handwriting or typewritten) and holographic wills (must be in your own handwriting). Depending on the type of will that is introduced to the court will determine what the law requires for it to be determined a valid will.

  • Notifying all heirs and creditors of the death

During the third step of the probate process, the executor sends out written notices to your heirs and creditors so they know you’ve passed away. This is not always an easy step, because modern families relocate, family members may get married and change names, companies merge or fail, and people are not always upfront or clear about heirs, property, assets and debts they have. Each jurisdiction sets a deadline by which the heirs and creditors may make a claim against the estate. If no heirs or creditors come forward by this deadline, they lose their right to the property or assets. Most often this means that their share of the estate goes to other heirs or creditors. If there are no heirs or creditors, the estate may revert to the state at the end of the probate process, but this is very rare because other individuals such as parents or siblings can be included in the line of distribution.

  • Finding and managing the assets, property and other estate-related affairs of the deceased

The fourth step of the probate process requires your executor or administrator to look over all your estate records to figure out what property you have. This is not always an easy step. The administrator can hire a forensic accountant if the estate can afford one, or the administrator will have to do some investigating to determine the rightful heirs. After the executor has a clear understanding of everything you owned, in what capacity you owned it and the value of what you owned they can request to distribute your assets to the people who are entitled to receive them. After all property, assets, and issues are distributed and concluded, the executor notifies the court, and the court formally closes the estate.

Is Probate Necessary?

In some instances, probate is not necessary. Certain property may pass to others without probate, such as property in joint tenancy or in a living trust. If your assets are valued at less than $150,000, California will allow for the small estate affidavit to replace the probate process. As grueling as the probate process is sometimes it is in the best interest of the beneficiaries to hash out their issues under court supervision.