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Understanding Probate
By Matt Unangst, 23 Jan 16:08
• Probate is the court process that administers an estate
• Making a will won’t avoid probate
• Testate = will, Intestate = no will
• An executor is appointed by the will. An administrator is appointed by the state if there is no will
• A Public Administrator is appointed when there is no will or relatives
• Property in probate can be sold
When someone dies, the estate left behind must go through probate, no matter whether the person has made a will or not. Probate is a court proceeding which insures that the will presented is the last will made by the deceased, officially appoints the executor named in the will, and supervises the executor. Probate is often a complicated and drawn out process, but knowing a few things about it before going in can be helpful.
If a person has died without a will, they are referred to as “Intestate,” as opposed to “Testate,” someone who made out a will prior to death.
Even if the deceased died testate, the estate must go through probate and the will must be approved in court prior to its execution. In the court proceedings, the court must go through several steps before allowing the will. They must make certain that the person is actually dead, then certify that the will is valid. Next, they must identify the heirs and descendents of the deceased. It is finally time to settle the will. The court must first settle all debts held by the deceased prior to distributing his/her property.
A will names an executor who carries out the same administer the estate. If there is no will and no relatives, the court will appoint a Public Administrator to perform the same function. Sections 6400 through 6414 of the California Probate Code lay out the rules for how intestate probate is to be dealt with. These sections are extraordinarily complex and should be discussed with an attorney prior to taking any action.
Real property involved in probate can be sold, either privately or in a public auction.
A normal uncontested probate process still generally goes through a number of steps. The process kicks off with the delivery of the will to the executor or county clerk, who then must file for probate or Letters of Administration. There must then be a hearing on the petition, after which the court issues Letters of Administration and gives notice to creditors. An independent probate appraiser then must inventory and appraise the estate. The executor must file a federal estate tax return stating either that no tax is due or the amount owed. He/she can then begin the final accounting for the process and petition for distribution. After the final decree of distribution is issued, the administrator can finally be discharged.
KEYWORDS: probate, estate tax, public administrator, making a will, intestate, testate, executor, California probate code
SEE ALSO: Understanding Living Trusts
Tags: probate