Probate

Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the deceased person’s property. The phrase “going through probate” refers to this legal process.  This is the court administered process of dividing up one’s assets in an “orderly” fashion.

The best reason to have an estate plan is to avoid probate. There are limited circumstances where probate is desirable, but for the vast majority of people it is to be avoided. It is expensive—up to 8% of the gross estate, meaning without accounting for encumbrances, can go to executor and probate attorney fees, and that figure does not include CPA fees, filing fees, bonds, etc. Probate can take a longtime, and it is a public process.

In California, after a person residing in that state has died without a valid will or trust, his or her property immediately becomes the property of the spouse, if any, without the need for probate.  However, in cases where the surviving spouse does not automatically succeed to the decedent’s property, then it is usually necessary to “probate the estate,” whether or not the decedent had a valid will.  A court having jurisdiction of the decedent’s estate (often called a “probate court”) supervises probate, in order to ensure the decedent’s property is distributed according to the direction of his will and the laws of the state.

Probate generally lasts several months, occasionally over a year before all the property can be distributed.  The probate process can incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust.  Throughout the probate process, there may be disputes.  Anyone may make a claim on the estate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to attempt to prove the claim and collect money.  Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property.

For these reasons, the guidance of an experienced attorney can be very helpful both during the probate process, as well as before.