What Is Probate?

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A probate is a proceeding where a probate court will be placed in charge of supervising how the deceased’s property will be distributed. There are two scenarios to keep in mind: whether the deceased had a will or if he or she passed intestate (without a will). Read on to learn more about probate and if you have questions, speak with a probate attorney in Orange County.

How Does the Probate Process Work?

The probate process will vary if the deceased had a will or if he or she died intestate (without a will). If you have a will, this usually begins with the authentication of your will and formal appointment of your executor. However, if you passed without a will, this process often starts with the state naming a personal representative (or administrator) for you. In both cases, the probate court will be in charge of supervising how the property is distributed. The basic steps of the probate process are the same:

  1. Petition the court to become the legal representative (executor or administrator)
  2. Notify heirs and creditors of the opening of an estate
  3. Change legal ownership of assets from the deceased to the estate
  4. Pay funeral expenses, taxes, and debts
  5. Distribute remaining assets to heirs
  6. Notify the court of your actions and request the estate be closed

What Goes Through Probate?

Essentially, probate is needed for property that was: owned solely in the name of the deceased person (i.e. real estate or a car titled in that person’s name alone), or a share of property owned as “tenants in common”, (i.e. the deceased person’s interest in a warehouse owned with his brother as an investment).

What Doesn’t Go Through Probate?

There are numerous items that do not need to go under probate, including:

  • Items that have a Beneficiary named;
  • Items placed inside a Living Trust;
  • Funds in a payable-on-death (POD) bank account or TOD (transfer on death);
  • Jointly titled property (with Survivor’s Rights);
  • Vehicles that go to immediate family members under state law, among others.

Probate With a Will

If you have a will, the probate process usually begins with the authentication of your will and formal appointment of your executor. A will is a legal document that spells out your wishes after your death, preventing that those wishes may not be carried out.

Probate Without a Will

In case there is no will, in other words, your estate is intestate, this process often starts with the state naming a personal representative (or administrator) for you. Your assets would be frozen and inaccessible to your heirs until the courts decide who will distribute them. Courts will follow state intestacy laws since your actual wishes remain unknown.

How Long Does Probate Take?

Probate is a complicated process that can take months to complete or even years in some cases, so it is essential to take the necessary precautions before moving. The actual process varies largely by state.

How Much Does Probate Cost?

The costs will vary accordingly to the state you were residing at the time of death; the fact that you had or had not have a will on place; the size of your estate, among others.

How to Avoid Probate

There are a few alternatives to avoid probate. A very common tool to avoid probate is to create a trust fund. The person creating the trust is called the “grantor” and can establish the type of trust that best fit for his or her purpose. The most common types of trust are: 1) Revocable Trust; 2) Irrevocable Trust; 3) Special Needs Trust; and 4) Charitable Trust. A Revocable Trust, also known as a Living Trust, allows the grantor to place assets in the trust during his or her lifetime. After the grantor’s death, the trust becomes irrevocable, and the assets are distributed accordingly to its provisions. Additionally, trust funds provide tax benefits and avoid the probate waiting period.