If on your death you leave a will as the primary document for handling your estate, then in almost all cases the will must be probated. Probate is a court procedure for the proving of a will, marshaling the assets, payment of debts and expenses and distribution of the property. In California, probate is a regimented, lengthy and an expensive process and the goal of any estate plan should be to reduce or eliminate the need for probate all together. Probate may also be taken out when someone dies without a will known as an intestate death and in small estates may not be required. Important terms are:
- Testator – The individual who made the will that is the subject of the probate.
- Executor/Executrix – The personal representative of the estate as selected by the testator when the will was written. The executor or executrix is responsible to the court for administering the estate and depending on the type of probate will conduct the administration with little or varying degrees of court supervision.
- Administrator With Will Annexed – The personal representative of the estate who administers the estate whenever the person named as the executor in the will cannot serve.
- Probate Examiner – A member of the court staff who is responsible for reviewing all filings to verify proper form, content and complicity with court rules, procedural requirements and statutes for the benefit of the judge and other court staff.
- Probate Referee – The person responsible for conducting the appraisal of the property held by the estate.
From start to finish the basic process of a probate consists of the following actions:
- Petition – The executor or other authorized person will file the petition with the court that acts as the initial pleading and request the court act and have the will admitted to probate.
- Notice – At least fifteen days prior to the hearing to admit the will to probate notice must be published at least once a week for three weeks with a minimum of five days between publications in a newspaper of general circulation. Furthermore, notice must be mailed or personally served at least fifteen days prior to the hearing to each heir of the testator, every personal representative named in the will and each person who is entitled to receive property under the will.
- Hearing – After publication and notice rules have been met and the probate examiners have reviewed and verified that the required documents are filed and no defects exist a hearing will be held for admission of the will to probate. Depending on the facts and circumstances a formal hearing with witnesses and testimony will take place or the court may act on its own without any formal appearances.
- Letters – After the court has admitted the will to probate and the personal representative has satisfied all qualifications, the clerk of the court will issue letters which is the official document authorizing the personal representative to act. The letters will state the extent of the authority to act and the type of administration that has been granted.
- Inventory and Appraisal – The personal representative shall prepare a complete inventory of all property owned by the testator at the time of death. The report should be filed within four months of being appointed unless an extension is granted by the court. Unless waived, the court will provide the inventory to the appointed probate referee to begin the appraisal process.
- Creditor Claims – One of the main functions of probate is to ensure that debts of the testator are satisfied and thus the personal representative must give notice to the creditors under a fairly detailed set of rules. After the notice rules have been met the representative will then begin the process of accepting and/or rejecting in whole or part claims submitted for payment.
- Taxes – If the size of the estate is sufficient to incur an Estate Tax or includes provisions subject to a Generation Skipping Tax then an estate tax return shall be filed with the IRS within nine months from the date of death. However, the IRS does allow for an automatic six month extension.
- Probate Sales – If the financial condition of the estate is such that there are not adequate funds to cover the debts, devises, a family allowance, taxes or expenses the representative has a duty to sell estate assets. Furthermore, if the will directs that specific property to be sold the representative will begin the process. In certain instances the representative may sell property without court supervision however in many cases the sale must be authorized through the court and comply with fairly arduous requirements regarding the probate sale.
- Preliminary Distributions – If the personal representative is so inclined he or she may consider making preliminary distributions before the estate can be closed and fully distributed. Unless the personal representative is acting with independent authority then a court order must be obtained before making the distribution.
- Final Accounting and Distribution – When the estate is in a position to be closed the personal representative will draft and file a petition for final accounting and distribution. Once approved by the court the representative will then distribute the remaining assets.
While the probate process as presented above appears to be fairly straightforward, the fact of the matter is that probate can quickly become very involved and in the simplest of estates can last for a significant amount of time. Choosing the right person as the personal representative and working with a qualified attorney is paramount for successful navigation of the probate process.