Probate is the process by which a court determines to whom a decedent’s estate passes and what bills should be paid.
During a probate proceeding, a court appoints a person as the “personal representative” and that person is given the legal authority to act on behalf of the decedent’s estate. Probate comes from Latin for “to prove,” because the process proves up the individual’s estate and will.
The probate process proves up who the creditors are, accounts for the financial transactions in the estate, and eventually distributes the assets according to the terms of the will (if one exists) or according to the laws of “intestate succession” if no will exists.
Probate is also the process for resolving any contest or objections that may be filed from heirs or other interested parties such as will contests or disputes over who the heirs are or what share each heir takes.
How Is A Will Probated?
The personal representative must establish to the satisfaction of the court that the will offered for probate is in fact, the last will and testament of the decedent. This is done in one of two ways, depending on the type of will.
Formal wills are witnessed by two separate, independent witnesses who are both present when the decedent signs the will. The decedent must declare to the witnesses that the document is his last will and testament.
A will can also be a “holographic will” which means the will is entirely written, dated, and signed in the handwriting of the decedent. It is not a witnessed will. The proof of a holographic will is different from proof of a formal will.
When dealing with a formal will and its two witnesses, ideally both witnesses sign a statement filed in court stating that they, in fact, witnessed the decedent executing the will. The statement should further say that the attached will is a true copy of the will and that the decedent declared that the document was his last will and testament in their presence.
When dealing with a holographic will, someone who is familiar with the decedent’s handwriting must sign a declaration stating that the holographic will was, in fact, written in the decedent’s hand.
Does Someone Have To Go Through Probate If A Will Exists?
In California, an estate must be probated if it has “probate” assets exceeding a total of $150,000 in value. If the value of the probate assets is less than $150,000, California has an affidavit procedure that allows the person to collect assets (like bank accounts) without the need for a formal probate.
Another way to avoid probate is to have the decedent’s assets owned by a trust. People create a trust during a formal estate planning process. If a decedent puts the trust in place before his death and title to the assets are placed in the name of the trust, those assets do not need to be probated because the trust document determines how they pass. The successor trustee has the legal authority to distribute those assets without a court order.
What Are Some Barriers That People Face During The Probate Process?
Typical problems are disagreements over the validity of the will, the clarity of the terms of the will regarding who gets what, or whether the testator was competent to execute a will.
Fights can also occur about whether or not the executor maximized the value of the sale of one asset over missing property, which can occur after a decedent dies and when the heirs race to the house to see who can grab personal property first.
Problems can also occur regarding whether a particular debt is owed or not. In this case, a creditor may then be required to file a suit to include the debt in the probate proceeding.
Contests can also occur over “pretermitted heirs” meaning children of the decedent who are not m mentioned in the will. This situation usually arises when a decedent dies having fathered a child who he does not name or recognize in the will. If that person can prove he’s a child of the decedent, then he is considered a pretermitted heir. He’ll be entitled to his intestate share of the estate.
Other contests can occur over who should be appointed the personal representative or whether or not a particular person is qualified to act or has a conflict of interest that would prevent him from dealing with the estate in a fair manner.
When is A Probate Necessary?
A probate can be necessary for a number of reasons. For instance, if someone dies with an asset in his name and not in a trust, in order to deal with that asset after a decedent dies, a court must name a personal representative with the authority to take control of that amount.
Otherwise, the title will simply remain in the name of the decedent and cannot be sold or otherwise dealt with. Also, no one would have the authority to pay expenses related to the property, like property taxes.
For another example, if a decedent has a certificate of deposit for $500,000 in his own name, a probate must be done. Otherwise, the bank won’t have any authority to pay the certificate of the deposit to anyone and nobody would have legal authority to make decisions affecting the certificate.
Does All The Decedent’s Property have to Go Through Probate?
No. It’s not a probate asset if a decedent owned a life insurance policy with a beneficiary designation on the property. As a matter of contract, the life insurance company is obligated to pay the policy amount to the beneficiary without requiring a probate order.
The same thing is true with an annuity or with bank accounts that are either joint tenancy bank accounts (that pass to the survivor automatically without probate) or “pay on death accounts,” (which are accounts in which the decedent holds all the rights during his life but at death, the bank pays the balance in that account to the designated beneficiary without requiring a probate order).
These types of assets do not need to be probated because they can be passed to a successor without a court order. Alternately, you can avoid probate with respect to assets in a trust.
For more information on Probate Procedures, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (916) 635-0302 today.