The term “probate” can be confusing because it can apply to a specific court proceeding or it can also apply to a specific department or division of the Superior Court. Added to this confusion is the negative image that has been conveyed to the general public, whether by public or private means.
In order to clear up this confusion, it is helpful to know the difference between the actual court process and the specific department or division of the Court. To be clear, the Probate Court is, in most counties of California, a specific department of the Superior Court and is often referred to as the “Probate Court.” The Probate Court will hear and decide matters dealing with:
- Trust administration
- Powers of attorney
- Name changes
- Distribution of estates
- Trust and will contests
The probate proceeding is a specific administration proceeding that is supervised by the Probate Court that involves transferring the decedent’s property to the heirs or beneficiaries either by a valid will, or by intestate (without a will) succession.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to:
- Collect the assets
- Pay the debts and expenses
- Distribute the remainder of the estate to the beneficiaries
The negative image associated with probate administration is due, in part, to the lack of privacy, since probate is a public record; secondly, due to the high legal costs involved; thirdly, due to the length of time, which can range from six to eight months in the best-case scenario to eighteen months or longer in the worst-case scenario.
Probate Proceedings Can Be Avoided
The good news is that the probate proceeding can be easily avoided. For example, if you have the legal right to inherit personal property, like money in a bank account or stocks, and the gross estate value is worth $150,000 or less, you may NOT have to go to court. There is an affidavit procedure that you can use to transfer the decedent’s property into your name. Remember that the value of the decedent’s property is predicated upon what it was worth on the date of death.
If there’s real property interest involved, then it’s possible that you can avail yourself of a Petition to Determine Succession to Real Property so long as the gross value of the estate including the real property interest is $150,000 or less.
Finally, certain assets under the Probate Code are not included in the value of the decedent’s estate, for example:
- Cars, boats or mobile homes
- Real property outside of California
- Property held in trust, including a living trust
- Real or personal property that the person who died owned with someone else (joint tenancy)
- Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner
- Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries
- Unpaid salary or other compensation up to $5,000 owed to the person who died
- The debts or mortgages of the person who died (you are not allowed to subtract the debts of the person who died)
- Bank accounts that are owned by multiple persons, including the decedent
Although the probate proceeding or administration is something that can be easily avoided, with careful estate planning, sometimes probate administration is required because no estate plan was ever properly executed to avoid it.