WHAT IS PROBATE?
If someone dies owning assets in his or her name alone (“probatable assets”), there must be a probate court proceeding to determine who is to receive the assets. Probate is the legal process wherein the estate of a decedent is administered. If a person dies with a Will, the Will is given effect through the probate court proceedings. If the Will is deemed valid, an Executor will distribute the property of the estate as instructed by the Will. However, if a person dies without a Will the person is said to die “intestate” and the Administrator appointed by the court will distribute the estate based on the laws of intestate succession.
The most common probate proceeding is called the Formal Administration proceeding. The entire proceeding can take between 9 months to 1 ½ years, maybe even longer.
PROBATE PROCESS SUMMARY
Upon receipt of the Will, we will take the original documents to the probate court clerk’s office. This must be done within 30 days of the decedent’s passing. Whether there is a will or not, we will file the Death Certificate with the court and will file a Petition for Probate on your behalf. In the Petition, we will seek to name you as the Executor, if the will names you as such, or the Administrator, if there is no will. As the Executor or Administrator, you will be able to manage the estate’s assets.
Throughout this probate process, we will conduct all work required by the court such as, but not limited to, providing notices of the probate hearing to beneficiaries and creditors, assisting you in gathering assets and filing the Inventory and Appraisal Form, contacting probate referees, advising you on paying debts, and preparing income tax returns. During one of the hearings, the probate judge will instruct you on how to distribute the estate’s property.
YOUR DUTIES AND OBLIGATIONS AS AN EXECUTOR/ADMINSTRATOR
After being appointed the Executor or Administrator of an estate, certified copies of the Letters Testamentary or Letters of Administration naming you as the Executor may be needed by banks, title companies, tax authorities, and others, to allow you to administer the estate. Thereafter, you must collect all the assets, pay the debts and expenses, and then distribute to the remainder of the estate to the beneficiaries. The court will expect you to provide a report of how the estate was handled. Upon review and approval of such report, the judge will discharge you from your duties as executor or administrator.
If you find yourself needing assistance with a loved one’s assets, call OC Elder Law. We are experienced in the probate process and will guide you through this difficult time.