Probate is a Court procedure. It is the official way if there is no Will, or nominated by the deceased person’s Will.

The Court will designed a person, called an executor or Personal Representative, who has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.

The purpose of probate is to prevent fraud after someone’s death.

The probate  freeze the estate until a judge determines that the Will is valid.

Requirements :

1º.-  All the relevant people has to be notified

2º.-  All the property in the estate has to be identified and appraised.

3º.-  The creditors have to  be paid

4º.- All the taxes have to  be paid.

The Court  them, issues a Court Order distributing the property and the estate is closed.

The most common kinds of assets that pass without probate are:

Life Insurance

  • Retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
  • Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too.
  • The account owner can fill out forms to designate who should receive the account assets after the death.If a decesed had created a Living Trust to hold his or her’s largest assets, than that estate, too, won’t go through probate, unless the assets left outside of the trust add up to more than California’s small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust’s Grantor.
  • But for estates in California that exceed the small estate’s threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate will be required before an estate can be transferred to the decedent’s heirs or beneficiaries.

THE GENERAL PROCEDURE REQUIRED : To settle an estate via probate in California is the following:

(i)  The Will must be filed in the county where the deceded lived.

(ii)  A Petition for Probate must be filed as well.

(iii) This requests the appointment of an executor. If there is no Will, the Court will appoint someone to serve as the Personal Representative of the estate. Notice must be given to all heirs and beneficiaries, as required by the court.

(iv)  Once the Petition for Probate is filed, a notice must be published in a newspaper where the deceased lived. This is to notify potential creditors  of the proceeding.

(v)  The Court will issue “Letters Testamentary” to the executor/Personal Representative — this gives the executor legal authority to act on behalf of  the estate.

(vi)  An inventory of the estate’s assets must be filed with the court

(vii) Once all of the creditors and taxes have been paid, a Petition to close the probate must be filed with the court.

(viii) The Court will issue an Order, distributing the estate’s property to the beneficiaries.

(ix)   The executor is entitled to fee for their services, but since such fees are subject to income tax (which inheritances aren’t, unless California has an inheritance tax)

(x)    Many executors forgo the fees.

Charo Garcia Mariscal   Attorney at Law  International Family  Law  and Inheritance   Madrid Spain   +34 917338930   Skype : abogados_garcia_ mariscal