What Is Probate?
Probate is a procedure that is prescribed by state law, and as such, varies from state to state. If a person dies and he or she has a certain value of assets in his or her own name, then his or her estate must go through probate in the county where the decedent lived. If someone dies without having a trust or somehow acquires property that is worth more than $150,000 and is not in his or her trust, then the heirs will have to look for a will. If there is a will, it will typically name an executor. Then, one sees whether or not the person named as executor is alive and whether he or she is capable. If not, the will might provide for an alternate executor or someone will propose himself or herself as the executor and ask the court to be appointed. Then, there has to be a filing, which, in California, is called a petition for probate.
That petition recites who the decedent was, in which county the decedent was a resident of at the date of death, attaches a death certificate, and attaches a will, if there was a will. Now, the court is involved. If there is a will, the original will is supposed to be given to the court. If the original will is lost, there is a procedure for proving a copy of a lost will. The court will appoint an executor, assuming that no one objects. If there is an objection, there has to be a hearing and the parties have to go in front of a judge, who will decide if one or neither of those people will be the executor.
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You can see now that probate is a time-consuming process with the court’s supervision, which is both good and difficult. The petition must recite who all of the beneficiaries are, either under the will or under intestate rules. The executor or administrator must send a Notice to Creditors, which means mailing a formal document to anyone the executor or administrator believes to be a creditor of the decedent.
By filing a probate, one puts on record the fact that this person died and the known assets of the decedent. The description of the property is called the inventory, by which the executor files a formal list of the assets that he or she have discovered and the court appoints a probate appraiser to give a third party independent value to the assets. All of this is on public record and anyone can look at it. So, one of the huge disadvantages of probate is that almost everything is public record. The public learns about the family’s business and the law requires the executor not only to publish the fact that the decedent died but also, in effect, to invite people to ask the estate for money.
Not all of the claims from creditors are good claims and not all the claimants are honest people. The publication of the probate invites some unscrupulous people to come forward and see if they can get away with essentially holding the estate hostage. Separately, the executor must decide whether or not to sell any real property and if so, typically there must be what is called a probate sale. The executor must give notice of it to the public and the court has to allow a bidding process, in court, by which other people can intervene.
The court will finally order a final distribution and there will be a formal order, which will also be a public record, and it will say that according to intestate succession or according to the will, such and such property goes to whichever beneficiaries. The entire process is very time-consuming. There is a statutory formula that allows the executor to take a fee, if he or she wishes, and also allows the attorney to take a fee. Sometimes, the executors decline the fee but some people do not. There can be a relatively modest estate and very easily have $30,000 of attorney’s fees and executor’s fees, not counting miscellaneous court costs.
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