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"What Is Probate?"

 

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Probate is a legal proceeding which is primarily concerned with the transfer of assets of a deceased person. Probate is not mandatory.
Probate does serves a practical purpose. When someone has assets in their name, such as bank accounts or a deed to real property, the bank or the title company requires the owner of the account or of the real property to sign for the transfer of assets. When the owner dies, there is no practical way to make this transfer – that is where probate court comes into play.

When a matter is brought into probate court, the court will name a personal representative for the estate, who is authorized to sign things on behalf of the deceased. That person is many times called an executor. The executor’s job is to collect assets of the estate, payoff all of the bills, and then see that the assets are distributed in accordance with the will or in accordance with California law if there is no will. The executor is paid a fee to do this that is based on the size of the estate.


You can normally expect a probate to be completed within a year. The attorney of the estate and the executor are not paid fees until the estate is closed. Those fees need to be approved by the probate court. Once the executor is named, notices go out to creditors during what is called the “creditor claim period”. This is a 2-4 month time period where creditors are given the opportunity to file claims against the deceased’s assets. If the creditor fails to file a timely claim, then their claim may be barred from collection. This creditor claim is a statute of limitations for creditors. During the creditor claim period, the assets of the deceased can be sold. Sometimes an auction is held by the court to ensure that the highest possible price is received for the sale of an asset.


When the assets that are required to be sold have been sold and the creditors paid, the estate is ready to be closed. The executor at that time presents to the probate court an accounting for what he or she has done with assets. This shows what assets were originally in the estate and what has come in and gone out of the estate, and will balance to the penny with the current assets of the estate. Obviously, it is important for the executor to write everything out of a check book and to keep detailed records to assist in this accounting. The court reviews this accounting and if it meets with the satisfaction of the court, it orders the estate closed and then approves a fee for the attorney of the estate as well as the executor. If real estate is still held in the estate, the probate court’s order acts as a deed and is recorded. This transfers title into the name of the heirs of the deceased.

 

Shawn Rabban (310) 714-5616


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