What is probate?

Probate means that there is a court case that deals with:

  • Deciding if a Will exists and, if so, establishing its authenticity;
  • Determining who are the decedent’s heirs or beneficiaries;
  • Ascertaining the worth of the decedent’s property;
  • Handling of the decedent’s financial responsibilities; and
  • Transferring the decedent’s property to the heirs or beneficiaries.

In a probate case, an executor (if there is a Will) or an administrator (if there is no Will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. An entire probate case can take between 9 months to 1 ½ years, sometimes longer.

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Step 1: Figure Out Who Will Be the Estate Representative.

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The first thing is to figure out who will be the representative of the estate. If there is a Will, the representative is the executor named in the Will.

If there is no Will, it depends whether the case needs to go to probate court or not.

  • If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind can be the informal estate representative.
  • If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.

If someone dies without a Will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461. The surviving spouse or legal domestic partner is at the top of the list, children are second, grandchildren are third, and so on.

Sometimes, it is not clear who should be estate representative, for example, if the Will does not name an executor and more than one person has the same priority, or there is a disagreement between heirs as to who should serve, or the person with the higher propriety has a conflict of interest, just to name a few.

If you are the estate representative, keep in mind that:

  • You must be trustworthy, very organized, and act diligently and responsibly.
  • You must always stay informed of your responsibilities, keep good records, and communicate with everyone involved.
  • Until the property goes to the right beneficiary, you are responsible for managing it in everyone’s best interests. This is called a “fiduciary duty” (duty recognized by law).
  • You have a duty to act responsibly and honestly. If you break your duty, you may end up being personally responsible for any loss to the value of the estate.

As the estate representative, it is advisable to hire a probate attorney to assist you, the estate representative, through the process. 

Step 2: As Estate Representative, Start Gathering Information and Fulfilling Your Duties.

There are a number of preliminary duties placed on an estate representative:

  • Take possession of the property and safeguard it until everything is distributed and any debts are paid (i.e., if the assets are in the decedent’s house, make sure the house is secure, and store any important papers and valuables in a safe place).
  • Find the Will if there is one.
  • Obtain certified copies of the death certificate. You will need them for many of your duties.
  • Collect any assets and death benefits, if you can, such as bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.
  • Determine who all the heirs and beneficiaries may be.
  • Inspect any safe-deposit boxes for important papers or other valuables.
  • Collect the decedent’s mail, to make sure you don’t miss anything important.
  • Cancel credit cards and subscriptions.
  • Manage “digital assets” (like online accounts, photos and documents stored on line, etc.). You may need to get email access for important information.
  • Notify the Franchise Tax Board
  • Notify the Social Security Administration if the decedent was receiving monthly social security benefits.
  • Prepare the decedent’s final income tax returns.

Important: These are just some of the steps you will have to take. Make sure you are doing all you need as estate representative to take care of the estate and help make sure it gets distributed correctly.

Step 3: Determine Who the Heirs or Beneficiaries Are.

“Heirs” refers to people who have the right to inherit when someone dies without leaving a Will (called “dying intestate”). Beneficiaries are the people who inherit according to a Will.

Who the beneficiaries or heirs are is usually decided by:

  • The terms of the Will,
  •  State law, if there is no Will, or, if there is a problem with the Will, or
  • Other estate planning documents like beneficiary designations (i.e., retirement accounts), living trusts, or joint tenancy arrangements.

It is not always straightforward to determine out who heirs, or beneficiaries are. Even if there is a Will, maybe it was not up-to-date and the new spouse was not included or the Will was not changed after a divorce, or a beneficiary named in the Will has already died, and many other situations.

Step 4: Identify and Create an Inventory of the Decedent’s Property.

You will need to carefully identify all of the decedent’s property, everything he or she owned. Then, you will have to make an inventory of everything.

Property is broken down into Real Property and Personal Property. Real property refers to land and things permanently on land, like houses. It also includes things like a real estate lease of at least 10-year term or with an option to buy. Personal property is all property that is not real, and it can be tangible or intangible. Tangible property are things you can touch, like cars, boats, jewelry, furniture, antiques, etc. Intangible property is abstract. It is a right to be paid money or have some type of power and it is usually laid out in writing. (i.e., stocks and bonds are intangible, and the stock certificate is the document giving you ownership over the stock so you can sell it).

In addition, you will also need to determine how the property you found is owned. Was it just owned by the decedent, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? Maybe it was a mix of both?

Once you have identified all the property and have all the necessary papers, you will need to make a list of assets and debts. It should list all the property the decedent owned when he or she died. For your list, record:

  • Each asset, with a brief description,
  • The value of the asset as of the date of death
  • How the decedent owned the asset (i.e., separately, or in joint tenancy, or as community property, etc.)
  • What portion of the asset the decedent owned, and the value of the decedent’s portion, and,
  • Whether anyone could file a claim specifically against the asset for repayment of a loan or other debt (creditor).

Step 5: Decide the Best Transfer Process for the Assets.

Once you know what property the decedent owned when he or she died, who should get what asset, and what the value of everything is, you need to figure out how to transfer it.

I am here to help

If you’re telling yourself that this sounds complicated, then you would not be wrong. Depending on the size of the estate or the relationships between and number of the beneficiaries or heirs, probating a Will or administering intestate succession can be a complex, laborious, and draining experience. We have all heard of nightmare situations when a distant, out-of-state relative claimed an interest in an estate, or that relative objects to another’s claim to an interest in the estate. I have also assisted an attorney with a probate where the executor was required to draft an affidavit stating that the executor could not locate a named beneficiary in a Will because the beneficiary was homeless.

Not every Probate case flows smoothly. Even a well-drafted Will can face harsh scrutiny in Probate court. That’s where an attorney like me can help. I will look for practical and productive solutions specifically tailored to your situation.