What is Probate?

When a house is in probate, it means that the legal process of administering the estate of a deceased person is underway, and the ownership of the property is being determined. The probate process is designed to ensure that the debts of the deceased person are paid, and that their property is distributed to the rightful heirs or beneficiaries.

During the probate process, the court will appoint an executor or personal representative who will be responsible for managing the deceased person’s estate, including the property. The executor will identify all of the deceased person’s assets, pay any debts or taxes owed, and distribute the remaining assets according to the deceased person’s will or, if there is no will, according to the laws of the state.

Who you work with matters

Mark Leddy has been working with sellers in probate for over a decade. His experience and market knowledge combined with leveraging the marketing reach of both Schneider Properties and Compass give his clients the best results in the industry. There is no “one size fits all” solutions for sellers in probate. Mark’s extensive list of vendors can help you with any request you have.

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GLOSSARY OF PROBATE TERMINOLOGY

PROBATE:

When a house is in probate, it means that the legal process of administering the estate of a deceased person is underway, and the ownership of the property is being determined. The probate process is designed to ensure that the debts of the deceased person are paid, and that their property is distributed to the rightful heirs or beneficiaries.

 

During the probate process, the court will appoint an executor or personal representative who will be responsible for managing the deceased person's estate, including the property. The executor will identify all of the deceased person's assets, pay any debts or taxes owed, and distribute the remaining assets according to the deceased person's will or, if there is no will, according to the laws of the state.

PROBATE COURT:

Probate court is a specialized court that deals with the administration of a deceased person's estate. The purpose of probate court is to oversee the process of settling the estate, which includes identifying and valuing the deceased person's assets, paying any outstanding debts and taxes, and distributing the remaining assets to the rightful heirs or beneficiaries. In addition to handling the probate process, probate court may also be responsible for appointing guardians for minors or individuals who are unable to care for themselves, as well as managing trusts and other estate planning arrangements. Probate court is generally overseen by a probate judge, who is responsible for ensuring that the probate process is carried out in accordance with state law and that the rights of all parties involved are protected. The judge may also be responsible for resolving any disputes that arise during the probate process, such as disagreements over the distribution of assets or the validity of a will.

PERSONAL REPRESENTATIVE:

A personal representative is a person who is appointed by the probate court to manage the estate of a deceased person during the probate process. The personal representative is also sometimes called an executor or an administrator, depending on the terms of the deceased person's will. The personal representative is responsible for carrying out the instructions of the deceased person's will, if there is one, or if there is no will, for administering the estate in accordance with the laws of the state where the probate is taking place.

JOINT TENANCY WITH RIGHTS OF SURVIVORSHIP:

Joint tenancy with rights of survivorship is a type of co-ownership of property in which two or more individuals own the property together. In joint tenancy with rights of survivorship, each co-owner has an equal and undivided interest in the property, and all co-owners have the right to use and enjoy the property.

 

One of the key features of joint tenancy with rights of survivorship is that when one co-owner dies, their interest in the property automatically passes to the surviving co-owner(s) without the need for probate. This means that the surviving co-owner(s) will automatically become the sole owner(s) of the property.

TESTATE:

If a person dies with a valid will, they are said to have died testate. In this case, the probate court will oversee the distribution of the deceased person's assets according to the instructions set out in their will. The executor or personal representative named in the will is responsible for managing the probate process and carrying out the deceased person's wishes.

INTESTATE:

If a person dies without a valid will, they are said to have died intestate. In this case, the probate court will oversee the distribution of the deceased person's assets according to the laws of the state where the person lived at the time of their death. The court will appoint an administrator or personal representative to manage the probate process and distribute the assets to the deceased person's heirs according to state law. The heirs are determined by the state's intestacy laws, which typically prioritize spouses and children but may also include other family members.

CODICIL:

A codicil is a legal document that is used to modify, amend, or add to an existing will. It is a supplement to a will that allows the person who made the original will (also known as the testator) to make changes without having to create an entirely new will.

 

A codicil must be executed in the same way as a will, with witnesses and notarization, and it must refer to the original will in some way. The changes made in the codicil may be minor, such as adding a new beneficiary or changing the executor, or they may be major, such as revoking a provision in the original will or adding a new set of instructions.

 

Codicils are often used when the testator wants to make minor changes to their will without having to rewrite the entire document. For example, if a testator wants to add a new beneficiary, they can do so by creating a codicil that specifies the new beneficiary and how much they will receive. Codicils can also be used to update a will in response to changes in a testator's life circumstances, such as a marriage, divorce, birth of a child, or acquisition of new assets.

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PROBATE GENERAL INFORMATION

WHAT IS PROBATE?

Probate is the legal process by which a deceased person's estate is administered and distributed according to their will or, if there is no will, according to the laws of the state. The purpose of probate is to ensure that the deceased person's debts are paid, and their property is distributed to the rightful heirs or beneficiaries.

 

The probate process involves several steps, including:

 

  1. Filing a petition with the court to open probate
  2. Appointing an executor or personal representative to manage the estate
  3. Identifying and valuing all of the deceased person's assets
  4. Paying any outstanding debts and taxes
  5. Distributing the remaining assets to the rightful heirs or beneficiaries

The probate process can be complex and time-consuming, and it is generally overseen by a court or probate judge. 

HOW DOES THE PROBATE PROCESS WORK?

In California, the probate process is a legal procedure that takes place after a person's death to distribute their assets and pay off their debts. Here are the basic steps of the probate process in California:

 

  1. Filing the petition: The first step is to file a petition with the probate court in the county where the deceased person lived. The petition must include the original will (if there is one), a death certificate, and a list of the deceased person's assets and debts.
  2. Appointment of executor or administrator: The court will appoint an executor (if there is a will) or administrator (if there is no will) to manage the probate process. The executor or administrator is responsible for identifying and inventorying the deceased person's assets, paying off their debts, and distributing their remaining assets to the beneficiaries.
  3. Notice to creditors and heirs: The executor or administrator must give notice to the deceased person's creditors and heirs that the probate process has begun. Creditors have a set amount of time to file a claim against the estate for any debts owed to them.
  4. Inventory and appraisal: The executor or administrator must create an inventory of the deceased person's assets and have them appraised by a professional appraiser.
  5. Payment of debts and taxes: The executor or administrator must use the assets in the estate to pay off the deceased person's debts, including any taxes owed.
  6. Distribution of assets: After all debts and taxes have been paid, the executor or administrator can distribute the remaining assets to the beneficiaries according to the instructions in the will (if there is one) or according to state law if there is no will.
  7. Closing the estate: Once all of the assets have been distributed, the executor or administrator must file a final accounting with the court and obtain approval before closing the estate.

The probate process in California can be lengthy and expensive, and it is often a good idea to seek the advice of an attorney to guide you through the process.

HOW LONG DOES PROBATE USUALLY TAKE TO COMPLETE?

The length of the probate process in California can vary widely depending on a number of factors, including the size and complexity of the estate, the number of beneficiaries, and any disputes that may arise. In general, however, the probate process in California can take anywhere from several months to several years to complete.

 

Under California law, creditors have four months from the date the executor or administrator sends them notice to file a claim against the estate. This means that the probate process cannot be completed until at least four months have passed from the time the probate petition was filed.

 

In addition, there may be other delays in the probate process, such as disputes over the validity of the will or disagreements among beneficiaries over how the assets should be distributed. These issues can extend the probate process and make it more complex.

WHY IS PROBATE REQUIRED?

Probate is required in many states, including California, to ensure that a deceased person's assets are properly distributed and their debts are paid off after they pass away. The probate process serves several important purposes, including:

 

  1. Validating the will: Probate ensures that the deceased person's will is valid and enforceable under the law. The court will review the will and make sure that it meets all legal requirements, such as being properly signed and witnessed.
  2. Identifying and inventorying assets: The probate process requires the executor or administrator to identify and inventory all of the deceased person's assets, including property, bank accounts, investments, and personal belongings. This helps ensure that all assets are accounted for and distributed properly.
  3. Paying off debts: Probate provides a mechanism for paying off the deceased person's debts, including any taxes owed. Creditors have a certain amount of time to file a claim against the estate, and the executor or administrator is responsible for using the assets in the estate to pay off these debts.
  4. Distributing assets: Once all debts have been paid, the executor or administrator can distribute the remaining assets to the beneficiaries according to the instructions in the will (if there is one) or according to state law if there is no will. Probate ensures that the assets are distributed properly and that all beneficiaries receive their fair share.

Overall, probate is designed to protect the interests of the deceased person's beneficiaries and ensure that their wishes are carried out after they pass away. While probate can be a lengthy and expensive process, it serves an important purpose in safeguarding the distribution of a person's assets and debts after their death.

HOW MUCH DOES PROBATE COST?

The cost of probate can vary widely depending on a number of factors, including the size and complexity of the estate, the number of beneficiaries, and any disputes or legal issues that arise during the process. Some of the typical costs associated with probate in California may include:

 

  1. Filing fees: The cost of filing a probate petition with the court can range from a few hundred to several thousand dollars depending on the size of the estate.
  2. Attorney's fees: Many people choose to hire an attorney to help them navigate the probate process, and attorney's fees can vary widely depending on the complexity of the case and the attorney's hourly rate.
  3. Executor or administrator fees: The executor or administrator of the estate is entitled to receive a fee for their services, which is typically a percentage of the value of the estate.
  4. Appraiser fees: The executor or administrator may need to hire a professional appraiser to value the deceased person's assets, and these fees can vary depending on the type and value of the assets.
  5. Court fees: The court may charge additional fees for various services and filings throughout the probate process.

Overall, the cost of probate can add up quickly, and it can be a significant financial burden for some families. It's important to consult with an experienced probate attorney to get a better sense of the potential costs involved in your particular situation.

IS PROBATE ALWAYS NECESSARY?

No, probate is not always necessary in California. There are certain situations in which assets can be transferred outside of probate. Some examples include:

 

  1. Joint tenancy with right of survivorship: When property is owned jointly with another person and includes a right of survivorship, the property can pass directly to the surviving owner without going through probate.
  2. Living trusts: Property that is held in a living trust can be transferred to beneficiaries without going through probate.
  3. Payable-on-death (POD) accounts: Bank accounts and other financial assets that have designated beneficiaries can be transferred to those beneficiaries without going through probate.
  4. Transfer-on-death (TOD) deeds: Real estate can be transferred to designated beneficiaries by means of a transfer-on-death deed, which bypasses probate.

It's important to note, however, that even if probate is not required, there may still be legal and administrative requirements that need to be addressed to transfer assets properly. Additionally, if there are disputes among beneficiaries or other issues that arise, it may still be necessary to go through probate to resolve these matters. It's best to consult with an experienced probate attorney to determine whether probate is necessary in your particular situation.

WHAT GOES ON IN THE PROBATE OF AN UNCONTESTED WILL?

In the probate of an uncontested will, the probate process generally proceeds as follows:

 

  1. Filing the petition: The executor named in the will files a petition with the probate court in the county where the deceased person lived. The petition includes the original will and other required documents, such as a death certificate and inventory of assets.
  2. Appointment of executor: The court will review the petition and, assuming everything is in order, will appoint the named executor to administer the estate.
  3. Notification of beneficiaries and creditors: The executor is required to notify all beneficiaries named in the will, as well as any known creditors, of the probate proceedings.
  4. Inventorying assets: The executor is responsible for identifying and inventorying all assets of the deceased person, including property, bank accounts, investments, and personal belongings.
  5. Paying off debts: The executor must use the assets of the estate to pay off any debts owed by the deceased person, including taxes and creditor claims.
  6. Distributing assets: Once all debts have been paid, the executor can distribute the remaining assets to the beneficiaries named in the will according to the instructions in the will.
  7. Closing the estate: Once all assets have been distributed and all debts have been paid, the executor files a final accounting with the court and requests that the estate be closed.

If there are no disputes or challenges to the will, the probate process can typically be completed within a few months. However, the exact timeline will depend on the size and complexity of the estate, as well as any issues that arise during the process.

WHERE IS PROBATE HANDLED?

Probate is handled by the court system in the county where the deceased person lived at the time of their death. The court with jurisdiction over probate matters is known as the probate court or the surrogate's court, depending on the state. In some states, probate matters are handled by a specialized probate court, while in others they are handled by the general civil court system.

CAN I HANDLE PROBATE WITHOUT A LAWYER?

While you are not required to have a lawyer to handle probate, it is recommended that you at least consult with an experienced probate attorney before proceeding. An attorney can advise you on the legal requirements of probate in your state, help you draft legal documents, and provide guidance on how to handle any issues or disputes that arise during the probate process. This can help you avoid costly mistakes and ensure that the probate process is handled efficiently and effectively.

DEFINITION AND DUTIES OF THE PERSONAL REPRESENTATIVE / EXECUTOR

WHO IS LEGALLY RESPONSIBLE FOR HANDLING THE PROBATE PROCESS?

The person who is legally responsible for handling the probate process is called the executor or personal representative. The executor is usually named in the deceased person's will, and if there is no will, the court will appoint someone to act as the personal representative.

 

The executor or personal representative is responsible for managing the deceased person's assets, paying off any outstanding debts, and distributing the remaining assets to the beneficiaries according to the terms of the will or state law. The personal representative must also file all required legal documents with the court, notify beneficiaries and creditors of the probate proceedings, and attend court hearings as necessary.

 

If you have been named as the executor or personal representative in someone's will, it is important to understand the legal requirements and responsibilities of the role. You may wish to consult with an experienced probate attorney to help you navigate the probate process and ensure that you fulfill all of your legal obligations.

CAN THERE BE MORE THAN ONE DESIGNATED PERSONAL REPRESENTATIVE?

Yes, it is possible to have more than one designated personal representative in California. In fact, California law allows for up to four people to serve as co-executors or co-administrators of an estate.

 

If there are multiple personal representatives, they must work together to fulfill their responsibilities and manage the probate process. They are jointly responsible for inventorying the deceased person's assets, paying debts and taxes, distributing assets to beneficiaries, and filing all necessary legal documents with the court.

In California, if the deceased person's will designates multiple personal representatives, they are considered "successor trustees." If there is no will, or if the will does not designate a personal representative, the court will appoint someone to serve as the personal representative. If multiple people wish to serve in this role, they must file a petition with the court and explain why they are the best choice to serve as personal representative.

If you are named as a co-executor or co-administrator of an estate in California, it is important to communicate effectively and work collaboratively with your co-representatives to ensure that the probate process proceeds smoothly. If disagreements or conflicts arise, you may wish to seek the advice of an experienced probate attorney to help you resolve any issues and ensure that the probate process is handled efficiently and effectively.

IS IT NECESSARY FOR THE PERSONAL REPRESENTATIVE TO LIVE IN THE DECEDENT’S STATE?

No, it is not necessary for the personal representative to live in the decedent's state. However, it is generally advisable for the personal representative to be familiar with the laws and procedures of the state where the probate process will be taking place.

WHAT ARE THE MAIN DUTIES OF A PERSONAL REPRESENTATIVE?

The main duties of a personal representative can vary depending on the specific circumstances of the estate and the state where the probate process is taking place. However, some common duties of a personal representative include:

 

  1. Initiating the probate process: The personal representative is responsible for initiating the probate process by filing the necessary legal documents with the court and paying any required fees.
  2. Identifying and collecting the decedent's assets: The personal representative must identify and locate all of the decedent's assets, including bank accounts, real estate, and personal property.
  3. Notifying creditors and paying debts: The personal representative must notify creditors of the decedent's death and pay any outstanding debts or bills from the estate.
  4. Filing tax returns: The personal representative must file the decedent's final income tax returns and any estate tax returns that may be required.
  5. Distributing assets to beneficiaries: The personal representative is responsible for distributing the decedent's assets to the beneficiaries named in the will or, if there is no will, to the decedent's heirs as determined by state law.
  6. Keeping accurate records: The personal representative must keep accurate records of all financial transactions related to the estate, including receipts, payments, and distributions.
  7. Communicating with beneficiaries: The personal representative must keep beneficiaries informed about the status of the probate process and respond to any questions or concerns they may have.
  8. Obtaining court approval: The personal representative must obtain court approval for certain actions, such as the sale of real estate or other major assets.
IF I AM NAMED AS THE PERSONAL REPRESENTATIVE, DO I HAVE TO ACCEPT THE JOB?

No, you are not required to accept the job of personal representative if you are named in a will. Serving as a personal representative can be a significant responsibility, and it is not uncommon for individuals to decline the role for various reasons, such as lack of time, experience, or interest.

ARE PERSONAL REPRESENTATIVES USUALLY PAID FOR THEIR WORK?

Yes, personal representatives are usually entitled to be paid for their work in administering the estate, although the amount and method of payment can vary depending on state law and the specific circumstances of the estate. In general, a personal representative is entitled to reasonable compensation for their services, which is typically based on a percentage of the total value of the estate.

 

In some cases, the decedent's will may specify the amount of compensation that the personal representative is entitled to receive. If the will is silent on the matter, state law may provide guidance on the appropriate amount of compensation.

WHAT HAPPENS IF THE PERSONAL REPRESENTATIVE FAILS TO PERFORM HIS OR HER DUTY?

If a personal representative fails to perform their duties properly, they may be subject to legal action, including removal from the position and potential liability for any losses suffered by the estate or its beneficiaries as a result of their actions or inactions.

 

If a beneficiary or interested party believes that the personal representative is not fulfilling their duties, they may petition the court to remove the personal representative and appoint a new one. The court may also take other actions to protect the interests of the estate and its beneficiaries, such as ordering an accounting of estate assets or requiring the personal representative to provide additional documentation or reports.