What is Probate?

Posted 2023-04-26

Probate is name for the legal process used to properly administer and distribute the assets of someone who has passed away. It is used to settle the financial matters of a deceased person’s estate (e.g., personal property, accounts, real estate, cash, intellectual property, business interests, securities, etc.).

Unless a decedent’s assets are held in a living trust at the time of death, probate will be needed even if there is a will (i.e., testacy). It is also needed if there is no will in place at all (i.e., intestacy).

Probating a Will

If the decedent dies with a will in place (or alleged to be in place), the probate process is necessary in order to:

determine the validity of the the alleged will
construe the will
enforce the terms of the will
appoint the executor of the estate
determine whether a bond will need to be posted
appraise the estate’s assets
ensure that the proper heirs receive their inheritance
provide creditors with an opportunity to make a claim against the deceased person’s estate, if needed
settle objections (e.g., will contests)

Intestate Probate

In situations where the decedent dies without any will in place, the probate process is necessary in order to:

appoint the executor of the estate
determine whether a bond will need to be posted
appraise the estate’s assets
ensure that the proper heirs receive their inheritance
provide creditors with an opportunity to make a claim against the deceased person’s estate, if needed
settle objections (e.g., will contests)

In California, the process of probate can be complex, but it is necessary to ensure that the decedent’s assets are distributed according to their wishes and the law.

We recommend comprehensive estate planning, including a living trust, in order to avoid or best prepare for probate.

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Want to know more about probate fees in California?

Living Trusts, Probate