What is Probate? Probate is a public court proceeding to clear title to property passing from a decedent to those persons named in the decedent’s will or entitled to take under the laws of intestacy (the California laws that determine who is entitled to inherit property when a decedent passes away without a will). Generally, if a decedent is the sole owner of an asset and title is vested completely in his or her name at the time of their death, the asset is subject to probate. An asset is not subject to probate when title to an asset vests by operation of law in another person on the decedent’s death (e.g. as assets held in joint tenancy with right of survivorship, assets held in a revocable living trust, and assets disposed of by contract, such as life insurance).
What happens during Probate?
A personal representative/executor/executrix is appointed by the Court to administer the estate.
The personal representative provides notice to all interested parties of the proceeding.
The personal representative collects and inventories all the assets subject to the probate administration.
Creditors and Taxes
All creditors of the decedent's estate and applicable federal and state taxes are paid.
The personal representative distributes the assets of the estate to the persons who take under the decedent's will or by intestate succession.
One of many goals of proper estate planning to to avoid probate. Often when there is no estate plan in place or a defective estate plan, the decedent's assets require administration through probate. Probate is disadvantageous compared to alternate methods for the following reasons:
Probate is more costly to the estate and its beneficiaries for many reasons. Under California law, fees and commissions are paid to the personal representative of the estate and his or her attorney based on the gross value of the estate. Additionally, there are filing fees, appraisal fees, tax return preparation costs, tax planning fees, and sales expenses that are frequently incurred in the connection with a probate.
Probate is time consuming process with many delays as there are many procedures that need to be complied with. Probate administrations in Los Angeles County are now lasting at least 18-24 months.
Public vs. Private
As probate is a court proceeding, all of the documents filed with the court, including personal information and the inventory of the decedent's assets are a matter of public records. When probate is avoided, court proceedings are not required. As a result of the public nature of the proceedings, probates tend to have greater adverse psychological effects on the decedent's family.