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What is Probate?

Oct. 1, 2019

Probate is a proceeding wherein the court appoints someone to take over the estate of someone who has died. That appointee, with the help of the court and usually an attorney, marshals that person’s assets, settles or litigates any legal issues, pays creditors such as the government, makes one or more suitable accounts and reports and, finally, petitions the court for permission to distribute that money and property to the appropriate persons.

What Estates Need to Be Probated?

In California, an estate of a decedent (dead person) that has a gross value of over one-hundred-fifty thousand dollars ($150,000) is probated. That’s the simplified short answer.

“Gross value” means the total value before you subtract debt. A person can die penniless and still have a gross estate of over one hundred thousand dollars. For instance, someone with nothing except a house worth one hundred fifty thousand dollars which is upside down still can’t pass that house without going through probate because the gross value of the estate is still one hundred fifty thousand dollars. In such a case, you probably would just let it go into foreclosure. A harder case would be where there was some equity, such as a twenty thousand dollars on a house and the cost of probate plus the cost of sale would eat that up. (In that case, the heirs would have to sell or pay the costs of probate out of their own pockets.)

Things that are not part of the decedent’s inheritable estate aren’t counted in figuring the dollar value of the gross estate. Assets in a properly-made living trust do not count since the decedent does not technically own them. Life insurance and joint tenancies do not typically count since the right to them either arises after death or is extinguished upon death. Community property counts only to the extent that the decedents give their half to someone other than their spouses in their wills.

How Long Does Probate Take?

The court calendar is a big delay. There are going to be at least two court hearings, one to get the order for probate and one for the final account or equivalent. How far ahead the court sets the hearings is not knowable until it is set. One month seems to be the minimum and six months is not unusual. Then the orders have to be submitted along with the paper giving the personal representative his or her authority, the court has to review and sign them, and mail them to the personal representative.

An estate cannot be distributed until at least four months have passed since the personal representative has been appointed and the appropriate letters have been issued (“Letters” here refers to the court-issued paper giving the personal representative of the estate authority to act). Letters can’t be issued until the appropriate notices have been sent, the publication completed, all the paperwork filled out and the court hears the Petition for Probate. Realistically, seven months is the absolute minimum time. There is no maximum, though the personal representative typically must report to the court if it takes more than a year from the order for probate. It is typical for my probates to take close to, but not over a year. Other attorneys tell me that two to three years is typical for them. Five years is not unusual.

The legal opinions stated herein are general and do not necessarily apply to particular situations. If you have a specific legal problem, contact an attorney.

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