The passing of a loved one is a sad and emotional time. It can be made harder by figuring out how to handle the legal side of distributing a loved one’s property.  Sometimes, a will was drafted telling the family and close friends how the property should be handled.  Other times, the property must be distributed through intestacy.

What is probate?

Probate is the court’s process for managing and distributing a person’s property after he or she has passed.  When a loved one has a will, but not a trust, their will is challenged for validity, or there are multiple conflicting wills or signed notes regarding the division of property, the estate may need to go through probate.

In California, if the estate in question has a gross value of less than $150,000, there is a simplified procedure that the heirs may use. The gross value only takes into consideration what a person’s property is worth.  It does not factor in any debts against that property.

Do I need an attorney for an estate in probate?

An attorney is not required in probate, but a well-trained probate attorney can help make the process easier during a time of grief.

How long does the probate process take?

Typically, the probate process takes about eight to twelve months; however, the amount of time will vary depending on how complex the estate is and whether special circumstances arise during the probate process.

What property is in the probate estate?

A person’s estate generally includes all of the property he or she owned or had an interest in at the time of passing.  But, the probate estate is made up of only the property a person owned “directly.”  Directly owned property is property the deceased had title to.  Property not owned directly can pass to someone (usually a spouse, domestic partner, or other beneficiary) more or less automatically and outside of probate.  These types of indirect or non-probate property include: property held in joint tenancy or community property with right of survivorship, such as a home; living trusts; insurance proceeds; and employment benefits paid to a spouse or beneficiary.

How is the probate process started?

To start the probate process, special forms and a filing fee must be filed with the superior court in the county where the deceased loved one lived.  The type of form filed depends upon if there is a will.  A Petition for Probate of Will is filed when a will was written and a Petition for Letters of Administration is filed when a will was not written.

Who may start the probate process?

In California, not just a spouse or child can file probate forms with the court, other persons may start the probate process if he or she is an “interested person” under the law.  Examples of such persons include:

  • spouse or registered domestic partner of deceased;
  • children or heirs of deceased;
  • persons receiving property through deceased’s will, trust or by gift;
  • creditors of deceased;
  • any person with a property right or claim to deceased’s estate that could be affected by probate; and
  • a “fiduciary” of anyone above (such as, a representative, trustee, guardian, custodian, etc.).

Who takes care of the property in probate?

Once the proper forms are filed with the court, a personal representative is named whose job it is to process the probate estate.  To do this, the personal representative will collect the property in the estate for safe keeping and appraisal.  He or she will pay the deceased’s debts and liabilities, such as taxes, that were owed at the time of passing.  When the estate is settled and the heirs and/or benefices are known, the administrator can submit to the court a final accounting of the estate and a request to convey the remaining estate property.