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Horizon Elder Law & Estate Planning Blog

Thursday, April 18, 2019

What is the Probate Process Like?

When a family member passes away, there are many legal steps that the surviving members must take to settle the person’s final affairs. In most cases, a family member is appointed in the person’s will to serve as administrator of the probate estate. The family member will be the one to administer the estate.  If there was no will, a family member might need to petition the court to be appointed to administer the estate.

Not knowing what to do or what may happen during the probate process can be overwhelming. Anyone who is charged with administering an estate can get help by contacting a California estate-planning attorney. An attorney can guide a person through the probate process to make it easier and less stressful.

What is Probate?

Probate is the legal process in which a deceased person’s final bills are paid and property owned at the time of death is distributed to heirs. An administrator (executor or personal representative) appointed in a will or someone appointed by the court carries out the probate process for the estate.

What Happens During Probate?

Each probate case is different. Therefore, the probate process is unique based on the facts and circumstances relevant to the deceased person’s financial matters. The probate process also depends on the person’s estate plan or a lack of a will.

Some steps in the probate process are common to all probate estates. An executor or administrator is expected to:

  • Identify, secure, and inventory the decedent’s assets. All property owned by the deceased that is subject to probate becomes the property of the probate estate. The administrator is responsible for this property until it is distributed to the decedent’s heirs.

  • Identify and notify the deceased’s heirs and beneficiaries.

  • Notify creditors that an estate has been opened. Review claims filed by creditors and any final bills received to determine if they are just debts of the decedent. An executor should pay just debts or object to debts that are improperly filed or may not be a just debt of the decedent.

  • The executor is charged with defending the will against challenges or represent the estate in any litigated matters.

  • An executor must determine if a final individual income tax return must be filed and whether an estate tax return is necessary. Taxes are paid from the assets of the deceased person.

  • At the end of the probate process, the executor distributes the property to the heirs according to the will or an order of the court.  The executor must take steps to transfer legal title to any property that is titled.

It is important to remember that some assets may pass outside of the probate process. Property held by a trust and assets that pass directly to beneficiaries are not assets of the state. Therefore, the executor is not responsible for these assets unless they are distributed directly to the estate for some reason instead of a beneficiary.

Contact a California Estate-Planning Attorney for Help

Being responsible for administering an estate can be overwhelming. You can hire a California estate-planning attorney to assist you with the administration of the estate. If you have questions about the probate process, talk with a California estate-planning attorney before proceeding with the probate process.


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