What Does It Mean to be in Probate?

Date: 08/09/20 | 251 article views
By: Modern Wealth Law

Probate is the court process of administering the estate of a deceased person. Depending upon the state and county in which the deceased person resided, there may be a court designated to handle probate matters. This court is often referred to as the Probate Court. So people will often say they are in Probate when they are going through the administration of a deceased person, or if they are in the Probate Court for some other matter. Probate Courts typically handle other related matters, such as Trust matters, Conservatorships and Guardianships.

Purpose of Probate

The purpose of Probate is to ensure that the debts of a deceased person are paid and the assets of a deceased person pass to the appropriate individuals. Many people are surprised when they learn that a bank won’t transfer assets to the deceased person’s children or that they cannot simply sell the deceased person’s home. Banks and title companies need to confirm that the person is entitled to act on behalf of the estate or receive the estate assets. The Probate administration is designed to make sure that all debts are paid before the assets are distributed. A Will is designed to give instructions to the Probate Court regarding how the assets should be divided. However, many people prefer to use a Trust instead of a Will because a Trust can avoid the Probate process altogether.

Legal Definition of Probate

Technically, Probate refers to the proving the validity of a Will. However, most people think of Probate as the administration of a deceased person’s estate, whether they died with a Will (testate) or not (intestate). When a deceased person had a Will, a petition should be filed with the Probate Court to Probate the Will and “Letters Testamentary.” If a deceased person did not have a Will, a petition should be filed with the Probate Court for Letters of Administration.

Personal Representative in a Probate

The person appointed to administer the estate is generally referred to as the “Personal Representative.” More specifically, if the person appointed is the individual named in the Will, this person is called the Executor. If there is no Will, the person appointed is called the Administrator. Both an Executor and an Administrator perform the same role so they are often referred to as the Personal Representative by the Probate Court.

Beneficiaries in a Probate

The beneficiaries are the people entitled to the assets of Estate. The beneficiaries are those that are named in the Will, or if there is no Will, the beneficiaries are the heirs-at-law. The heirs-at-law are the default beneficiaries when there is no Will. Each state has slightly different rules for determining heirs-at-law, but generally, they are the closest living blood relative. The beneficiaries have a right to attend the Probate hearings and receive notice of the Probate proceedings. The personal representative is typically represented by an attorney. The beneficiaries may need an attorney depending upon the validity of the Will, the actions of the Personal Representative or other matters that may be contentious. Beneficiaries may also need representation so that they understand their rights and do not relinquish any rights.

Other Parties in a Probate

Other parties that may be involved in a Probate included a Probate Referee and a Bond Company. The Probate Referee is responsible for appraising certain assets in the Probate. The Probate Referee is almost always chosen by the Probate Court. The Bond Company issues a bond to the Personal Representative. The bond protects the beneficiaries from malfeasance by the Personal Representative.

Length of Probate

The length of Probate varies from state to state and county to county. However, many metropolitan areas, especially in California, can be over two years. This is due, in part, to certain statutory waiting periods, but mainly due to the inability to get a hearing date within a reasonable period of time.

Probate vs. Probation

People often get probate confused with probation. Both involve the legal system. However, Probation is related to criminal law and the period of supervision over an offender. Probate has nothing to do with probation.

Contact an Attorney

Modern Wealth Law is an estate law & probate law firm that serves Orange County, California and is located in Costa Mesa. We specialize in estate planning, asset protection, probate litigation, trust administration and trust and estate litigation. John Wong has been recognized by the State Bar of California as a Certified Specialist in the areas of Estate Planning, Probate and Trusts. If you need to speak with a highly experienced probate lawyer in Orange County, and you need to answers to your questions fast, call Modern Wealth Law today and schedule a free, no-obligation consultation to discuss the details of your circumstance.


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