• What is probate?
• Where does probate occur?
• What assets are subject to probate administration?
• How is the Will probated?
• Is there any way to avoid probate?
• How does property of an intestate estate get distributed?

What is probate?

Probate is a legal process during which the court oversees the distribution of assets of the decedent. If there is a valid will, the assets are distributed according to the terms of that will. If there is no will, the assets are distributed according to the law of intestate succession where each relative takes according to his or her relation with the decedent.

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Where does probate occur?

Your Will is probated in the Court of the county and state in which you lived at the time of your death. If you own any property in another state, another probate proceeding will be started in that state and county.

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What assets are subject to probate administration?

All assets owned by you in your own name, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration when you die.

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How is the Will probated?

The following is a VERY simplified outline the general probate process:

1. The original of the Will (if any) is deposited with the Court.
2. T he filing of the Petition for Probate first needs to be published in a local newspaper, before the Executor named in the Will (if one exists) or Administrator (if there is no Will) is appointed. Executors and Administrators are commonly referred to as Personal Representatives, so from this point forward in our outline, we will refer to Will Executors and Administrators simply as Personal Representatives.
3. The Personal Representative then files a Petition for Probate of the Estate.
4. Generally, for a period of four months from the date of publication of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
5. During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition, and to collect income for the Estate. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc.
6. When the four month Claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
7. If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

The minimum amount of time that the probate process can be completed is approximately six months, but it sometimes takes longer. Reasons for delays can include Will contests, property cannot be sold, one or more claimants not being notified in the original four-month Claim period so they end up having to be re-noticed, etc. This is among the reasons why it is important to have a good probate attorney; it reduces the chances of complications during the probate process.

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Is there any way to avoid probate?

Yes, most states have a summary procedure whereby probate is avoided if the value of your assets is less than a certain value, or if the only heir or beneficiary is your spouse. For example, in California, if your assets amount to less than $100,000, probate can be avoided entirely. Property held in joint tenancy or with a beneficiary designation is not counted toward this $100,000. Also, no more than $10,000 of this $100,000 can be held in real estate. Otherwise, you will need to prepare a Trust in order for your assets to be distributed outside of probate court. It’s in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate.

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How does property of an intestate estate get distributed?

This is a complex issue, but below is a simplified overview of the manner in which assets are divided when there is no valid will. There are many exceptions and other issues which may influence the distribution, so be sure to check with an attorney for your specfic case.

Distribution is as follows: The surviving spouse receives one-half of the community property. The surviving spouse receives the entire separate property, if children, parent(s), sibling(s), or nieces or nephews do not survive the decedent. The surviving spouse receives one-half of the separate property of the estate if only one child or grandchild, or one parent survives the decedent. The surviving spouse receives one-third of the separate property of the estate when more than one child, or one child survives the decedent and one or more grandchildren, or two or more grandchildren. The part of the intestate estate not going to the surviving spouse is divided up as follows: First the children of the decedent receive equal shares. If there are no surviving children then the decedent’s parents share the remaining portion equally. If the decedent is not survived by children or parents, then the decedent’s siblings receive equal shares of the estate. If there are no children, parents, or siblings surviving the decedent, then the decedent’s grandparents inherit equal shares of the estate. The next in line to inherit would be the siblings of the decedent’s parents. If there are no surviving children, parents, siblings, grandparents, or siblings of the decedent’s parents, then the children of a predeceased spouse inherits equally from the estate. If there are no surviving children of a predeceased spouse then the deceased’s next of kin inherits the estate. If there is no surviving next of kin, then the parents of the predeceased spouse of the decedent inherits the estate. If there are no surviving parents of the predeceased spouse of the decedent then the children of the parents of the predeceased spouse inherit the estate.

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