What Is Probate and How Does It Work?

One thing many people may have to take part in at some point is probate. This is the legal process through which a court distributes the property of a deceased person to surviving heirs. It can sometimes be a cumbersome and frustrating process for the family members of the deceased. However, probate doesn’t necessarily need to occur if the deceased took steps to exert more control over how his or her estate would be passed onto others.

When Probate Is Not Required

The legal process of probate which involves a court and judge doesn’t occur every time a person dies. Certain things can be done to prevent the need for the probate process. In California, the probate process can be skipped if the deceased shared tenancy with another person and they owned property jointly as a couple. A legal marriage doesn’t necessarily need to exist in this case. Of course, a legal marriage or domestic partnership will also create property rights that don’t require the need for intervention by a court.

Another way probate can be avoided is if the deceased drafted a living trust before his or her death. The trust will specify who will become the trustee of the deceased’s property as which heirs will receive what property. Many kinds of property such as bank accounts, real estate and more can also be designated to be given to specific beneficiaries after the owner dies. This does not require a judge to enforce. It will happen automatically.

How Does the Probate Process Work?

However, in certain cases, a legal probate process overseen by a court will be needed. This usually happens when the deceased made no record during life to express preferences about which heirs should receive what property. However, even if a will exists, probate may still be required.

For probate to occur, someone needs to make the effort to get the process started. If a will exists, this will be the executor of the will. If there is no will and no executor, someone related to the deceased can request the court to name him or her as the administrator. This is pretty much the exact same role as the executor.

The process and job of the executor or the administrator could last anywhere from six months to a full year depending on the circumstances. During this time, the will needs to be legally filed. In California, this requires a fee of at least $400.

The executor or administrator will have to fill out other forms as well. Notices will be sent out to parties who may be named as heirs. The will also needs to be validated as legitimate in court. The easiest way to do this is by submitting a signed statement from a witness to the court. Once everything is settled, the executor or administrator will be given authority by the court to gather the property in question and distribute it to heirs. Creditors have a maximum of four months to make claims on the estate.