What is “probate?”
Probate is a court-supervised proceeding for administering a person’s
assets and debts following their death. During probate administration,
all of the decedent’s debts (e.g. medical bills, credit cards, loans,
taxes, etc.) will be paid or settled. Decedent’s remaining assets
are then formally transferred to any beneficiaries designated in decedent’s
will or to decedent’s legal heirs when there is no will.
How do I know if probate is necessary?
A formal probate may not be needed in California if the total value of
decedent’s assets are under certain limits or the only heir is a
surviving spouse. Additionally, prior to death a person may structure
their assets so that probate administration can be avoided. Real property,
bank accounts, IRAs, stock portfolios, vehicles and other assets can sometimes
be directly or automatically transferred upon the owner’s death
if title was held jointly with another person or if the decedent executed
a formal beneficiary designation. Another common way people transfer their
assets without probate is through a living trust. When decedent’s
assets cannot be transferred through any of these alternate methods, a
probate is usually necessary.
Even when decedent’s property can be transferred through alternate
methods, it may still be necessary to commence probate proceedings. For
example, the decedent may have been a party to a lawsuit when they died,
or otherwise have a claim or dispute, which can only be prosecuted, defended
or maintained through a probate proceeding. A probate can also be advantageous
when the decedent has substantial debts because probate rules require
creditors to follow strict procedural guidelines for asserting a claim
against decedent’s estate, including a limited claim-filing period,
or their claims may be barred.
What is the process?
Probate administration in California is initiated by filing a Petition
for Probate with the superior court. The petition asks the court to appoint
a personal representative and admit decedent’s will, if any, to
probate. It identifies decedent’s heirs and other interested parties,
and gives an estimated value of the assets to be probated. Once appointed,
the personal representative then takes control of all of decedent’s
property, has the assets appraised, pays or settles decedent’s debts,
pursues or defends any claims, pays all attorney’s fees and other
administrative expenses, and then makes final distribution of decedent’s
assets to the heirs or beneficiaries. When appropriate, the personal representative
may sell or liquidate decedent’s property to pay debts or administrative
expenses, or to carry-out distributions.
The entire probate process in California takes no less than nine (9) months
to complete. It is not uncommon for a probate to last a year or more.
The length of the proceedings depends on numerous factors and there is
really no way to predict exactly how long a given case will take. If a
summary or expedited procedure is available as mentioned above, the process
will normally take less time than a full probate and involve less fees
What is needed to start the process?
Before consulting with an attorney, you should be prepared to advise the
attorney as fully as possible of the nature and extent of decedent’s
assets, names, addresses, ages and relationship of all heirs and beneficiaries,
and whether or not decedent had a will. This often necessitates a diligent
search through decedent’s personal files and records, as well as
any safe deposit boxes. Many attorneys will also require a cost retainer
to cover the initial expenses, including the filing fee, publication fee
and any bond premium for the personal representative’s bond. The
attorney will then prepare and file the initial petition which is normally
set for hearing within six (6) weeks, at which time the personal representative
is appointed and probate proceedings are commenced.
How can Ajalat & Ajalat help?
Ajalat & Ajalat, LLP has been handling probate matters for more than
20 years and is experienced in handling both simple and complex estates.
Our general litigation experience makes us well-suited to handle estates
involving legal claims or disputes, including contested probate matters
such as will contests. Our attorneys provide clients with direct personal
contact and attention throughout the entire proceeding and assist with
every step of the administrative process. We can represent parties whether
their interest in the estate is as personal representative, an heir or
beneficiary, or contestant or other third-party claimant.
Ajalat & Ajalat can also assist clients in avoiding probate altogether
when possible. We can assist in transferring non-probate assets, such
as property that is jointly-owned or transferable on death, to a designated
beneficiary. We also routinely provide clients with premortem planning
in preparing a comprehensive
estate plan, including a living trust.
Disclaimer: The information set forth above is only a broad and general
description of the probate process, and is limited to probate administration
and estate planning in the State of California. The specific needs, procedures
and services applicable in a given case may differ from the general description.