WHAT IS PROBATE, AND DISPELLING COMMON MYTHS ABOUT PROBATE
Simply put, the primary purpose of probate is for the Court to supervise the transfer assets from the dead to the living. Just as we need a signed deed to transfer real property while we are living, or a pink slip to transfer ownership of a car while we are living, Probate transfers our assets when we are no longer around to “sign” our normal means of ownership.
How those assets are transferred or “distributed” depend on whether the individual has a will or trust or not. If the individual who has passed on has NO WILL, then his or her estate will be transferred by what is called in the California Probate Code as “intestacy” (one who passes away without an estate plan). But pursuant to the intestacy laws of the California Probate Code, your estate (all that you own at your time of death) will be passed automatically to your next of kin, which may be your children, surviving spouse (or sometimes, a divorced spouse), illegitimate children, parents, siblings, grandparents, aunts and uncles, or whoever is surviving at the time you pass away. And depending on your family relationships, you may not wish for those individuals to receive your estate.
On the other hand, if you die with a Living Trust, you can avoid Probate altogether. I’ll discuss a little more about this in one of my other articles, which explains how a Living Trust works.
If you die with only a Will, your estate must still go through Probate. Most people don’t know this, but it’s true. In California, probate is also the process of “proving the will”, which means that if a Will is submitted for probate, the Court still must make sure that the Will is done correctly, in accordance with California law. This means that the will must be signed and/or witnessed correctly, that the person who has done the will has legal capacity to do so (i.e., no alzheimers’, dementia, strokes, etc.), that the will is not a product of undue influence or fraud by someone else, and other requirements. I’ll also discuss these common problems with wills and trust later. But the Court must make sure that the will doesn’t have any of these problems before the will is admitted into probate, and an estate representative is appointed (also known as an administrator or executor). These are also grounds on which someone else can object to a will being admitted for probate, something which I’ll also address in another article.
Once the will is admitted into probate, any and all debts of the decedent (the person who passed away) must be negotiated and paid before you can finish or close out the probate. Before I went to law school, I used to believe that once you die, your debts go unpaid, simply because you were dead. Not true. Once you open a probate, you (the estate representative) must pay all “reasonably ascertainable creditors” (i.e., any bills you know about, or should know about). So, unfortunately, you can add a third “thing you can’t escape to “death and taxes”—creditors. But, fortunately, with a qualified attorney, you can minimize the amount your estate has to pay to creditors through skillful negotiation.
Once the probate has opened, and the creditors have been paid off, the estate is then either liquidated through a sale of the real property and/or personal property, either of which can be supervised by the Court or done independently of the Court.
Lastly, a final accounting must be submitted by the personal representative, and approved by the Court. If the accounting is approved by the Court, the estate can be distributed as per the will’s instructions, if there is a will, or according to intestacy provisions, if there is no will.
Keith J. Moten is a California Probate Attorney who specializes in probate and trust law, trust administration, probate, will contest and all matters involving wills and trusts.
For more questions about probate, or if you are facing a probate situation, please feel free to contact the Law Offices of Keith J. Moten at (310) 348-8138, or via e-mail at keith@motenlaw.com.