Glossary & Frequently Asked Questions
About Probate Issues
IMPORTANT NOTE: The information on this page is provided without warranty or guarantee of accuracy. Our intention is to help you learn more, and formulate specific questions to discuss with your attorney and/or your real estate professional, as well as to help a personal representative, executor, or executrix in executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a real estate professional.
Glossary of Important Probate Terminology
When a person dies, their last will and testament (assuming they prepared one in advance) is handled and their wishes for the distribution of their personal property implemented through a process called "probate." Probate is simply the procedure by which their last written directives are legally certified as the final statement of their wishes regarding their worldly possessions (including any property or properties they may have owned). It also confirms the appointment of a person or entity the deceased person selected to administer their estate. The term probate is also frequently used to refer to the entire process of “probating” an estate. In this usage, it refers to the entire process that gathers all available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.
The personal representative (also known as the executor or executrix) who is named in the will is legally in charge of this process and is responsible for handling the orderly method for administration of the estate as set forth by the probate laws and procedures of their state. The executor is typically held accountable for their actions and decisions by the heirs and other beneficiaries and in some cases may be formally supervised by a probate court. If a will does not exist or a personal representative is not designated in the will, the court will appoint one (assuming there is personal property to distribute).
The personal representative is often entitled by law to a reasonable fee or commission for their services.
Probate law generally encourages or provides for partial distributions of funds during the period of administration and assets are often distributed “in kind” rather than sold during this period. Tax laws generally look to the personal representative as being responsible for making death tax filings and other tax payments from the outstanding assets of the deceased. Therefore, choosing an executor/executrix/personal representative is an important decision.
The basic job of administration and accounting for assets must be done whether the estate is handled by a personal representative as part of the probate process, or if probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (such as revocable trusts, etc.) in states where the probate process has been seen to be too slow and overly expensive. In recent years, many states have simplified or streamlined their probate processes and, in such states, there is now less reason to employ probate avoidance techniques.
A probate court is a specialized legal process that deals with matters pertaining to the probate and the administration of the estate of deceased persons. California does not have a separate probate court. The Superior Court has jurisdiction over estate, (as well as mental health, and juvenile matters).
These specialized courts ascertain and oversee that proper administration and distribution of the assets of a decedent (one who has died), determine and certify the validity of wills, enforce the provisions of a valid will (by issuing the grant of probate), prevent improper action or malfeasance by executors and administrators of estates, and provide for the equitable distribution of the assets of persons who die intestate (without a valid will). In such cases, the court may appoint a personal representative to administer the matters pertaining to an estate.
If there are disputes regarding an estate, the probate court ultimately decides who is to receive the property of a deceased person. In a case of an intestacy, the court determines who is to receive the deceased’s property under the laws it is governed by. The probate court will oversee the process of distributing the deceased’s assets to the proper beneficiaries. In some states or jurisdictions, probate courts are also referred to as orphans courts, superior court, courts of ordinary or other names. Not all jurisdictions have specific probate courts and, in some locales, probate matters are handled by a chancery court or another court of equity.
The probate court can be petitioned by parties that are interested in or who have claims against an estate, such as when a beneficiary feels that an estate is being mishandled or someone to whom the decedent owed money. The court has the authority to demand that an executor, executrix or personal representative give an account of their actions on behalf of an estate.
The Personal Representative, also known as the Executor (if the personal representative is a male) or Executrix (if the personal representative is a female) is the person who is designated by the will of person who has died to administer their estate and handle the distribution of its assets to those entities designated by the provisions of the will. Unless there is some valid objection or the person designated refuses to serve in that capacity, the probate judge will appoint the person who is named in the will to serve as the personal representative.
It is the duty of the personal representative to ensure that the deceased person’s wishes, as expressed in the will, are carried out. Some of the tasks that may be required to be performed by the personal representative include determining and protecting the specific assets of the estate; obtaining information (name and location) in regard to all beneficiaries named in the will and any other potential heirs; collecting and arranging for payment of the debts (if any) of the estate; approving or contesting any claims made by creditors; making sure estate taxes are calculated and paid, filing any required forms, and assisting the attorney for the estate (often selected by the personal representative if not specified in the will).
Joint Tenancy With Rights of Survivorship
Joint tenants (or tenancy) with the right of survivorship (JTWROS) is a type of ownership of real property or financial assets in which all joint owners have equal portions of ownership that are immediately re-allocated to remaining owners if one or more owner dies.
This term refers to a person who has died and left a “Last Will and Testament” that specifies their wishes pertaining to the distribution of the assets of their estate following their death. In this case, the estate will be distributed according to the provisions of the will.
This term refers to a person who has died and did not leave a “Last Will and Testament”. In this case, the administration of the estate will be handled by the court of jurisdiction and according to the laws of the state.
A codicil is a document, attachment or rider that is added to an existing will that modifies or supersedes existing provisions or adds new provisions. This is done as an alternative to redrawing the entire will and is often done to change a beneficiary or assign disposition of a particular property or define the rights of a specific beneficiary.
Probate Definitions And General Information
Q: How does the probate process work?
A: While the process can vary from state to state and is often subject to outside factors that can certainly change it, the list below represents a VERY simplified step-by-step description of the process:
An original (signed and executed) copy of the will is delivered to the local probate court or whatever court supervises probates in that locale.
A notice of the Petition for Probate is published in a local newspaper. This is usually a requirement prior to the formal appointment and/or certification of the personal representative (executor / executrix) who was named in the will, assuming a will exists (legally referred to as “testate”), or the court-appointed administrator if there is no will (referred to as “intestate”).
After the certification or appointment of the personal representative has been made official, they then file their formal petition with the court to probate the estate.
Following that step and generally for a legally specified period of time (four months is typical) from the date of the public notification of the petition for probate, creditors against the estate are allowed to file their claims. This includes any previously unpaid debts, other liens or judgments, debts resulting from medical care, funeral expenses, outstanding taxes, and other encumbrances.
During this same period, the personal representative will be working to identify, gather and secure the assets of the estate in such a manner as to be able to ultimately distribute them in accordance with the will or court directives. To accomplish this, the personal representative will also need to locate and access all bank and other types of security accounts; determine any of the remaining debts owed by the decedent that require settlement; determine any real property(s) owned by the decedent and secure the titles to these and any other assets that will ultimately need to be disposed of.
It’s also the responsibility of the personal representative to maintain these assets safely, properly and in good condition during their period of stewardship as well as collecting any income (rents, residuals, interest payments, etc.) that are due to the Estate. To do so, the representative must be aware of and maintain proper insurance coverage; protecting the assets from theft or damage, etc.
The personal representative may also (if permitted or desired) liquidate some of the hard assets such as cars, real estate, etc. This is often done to provide the cash required to compensate creditors.
When the formal claims period has expired and all assets have been collected; property that needed to be sold has been sold; and assuming no problems have arisen such as a contesting of the will by any of the heirs or other contested claims against the estate, the personal representative will usually file their final petition with the probate court to allow a complete distribution of all remaining assets to the heirs and beneficiaries. This final petition includes a detailed accounting to the court explaining all of the expenses incurred, funds and assets received and disbursed, how any assets were invested or otherwise used, and the proposed final plan for final asset distribution.
Assuming the court approves this petition, the personal representative then distributes the assets as instructed in the will and detailed by the approved petition, and/or as required by law or the courts if there was no will.
Q: How long does probate usually take to complete?
A: The duration of the probate process is subject to lots of different variables, but a general rule of thumb is approximately six months. However, you should be aware that it can and frequently does takes far longer. Some of the matters that can delay the completion of the process (among others) can include:
Problems in locating the heirs and beneficiaries
A contest of the will (disputing the validity of the document) by the heirs or beneficiaries
Claims or liens against the estate that remain unsettled
Real estate or other property that cannot be sold for some reason
Failure to properly notify one or more creditors during the claim period
Dissatisfaction regarding the actions of the personal representative by the heirs or beneficiaries
The complexity of the task and these myriad possible delaying factors make it all the more imperative that a well-organized and meticulous personal representative be selected who can effectively manage the process and reduce the chances of complications and delays.
Q: Why is probate actually required?
A: There are many reasons for probate, but some of the most important are:
Transferring the legal title/ownership of the decedent’s property and assets to the heirs and/or beneficiaries. Generally, if there is no property to transfer, there is usually no need for probate.
Collecting any taxes due that may be owed by the decedent or his/her estate at the time of death, or taxes that become due when a property is transferred.
Providing a legally mandated deadline for creditors to file claims against the estate; this prevents old debts or unpaid creditors from becoming or pursuing future claims against the heirs or beneficiaries.
Settling and clearing title on any of the decedent's owned real estate; (without this process, no party can properly accept title to that property or obtain a new mortgage). Provides the vehicle by which the decedent's real estate assets obtain “clear title” and can be sold to a buyer.
Legally appointing a representative for the decedent's estate. Generally, no one could enter into any other transactions involving the deceased’s property until the will has been filed for probate and someone has been legally appointed to act for the estate.
Providing a legal method for the actual physical distribution of the remainder of the estate’s property to the heirs and beneficiaries.
Q: Is it necessary for all of the decedent’s property to go through probate?
A: Not necessarily, however, some legal method must be employed to transfer the legal title and ownership of the deceased’s property into the name of the beneficiaries and/or heirs. Many states also allow some types of property to pass to certain beneficiaries free of probate or via a simplified (express or fast-track) probate procedure.
Usually, real and personal property owned under a structure called “joint tenancy with rights of survivorship” passes to the surviving co-owner(s) without a requirement for probate.
Other types of benefits, such as a life insurance policy or an annuity that is payable directly to a named beneficiary can often be tendered without the requirement for probate. Also, IRAs, Keoghs, and 401(k) accounts usually transfer to the persons named therein as heirs or beneficiaries automatically without probate. Bank accounts that are set up as “payable-on-death” accounts; ones that are being “held in trust for” specific heirs or beneficiaries (also called a “Totten Trust”) also pass the proceeds directly to the named heirs or beneficiaries without probate.
A “living trust” that holds title to a property held in trust also passes that property to the heirs or beneficiaries without probate. Such a trust is a legal entity which survives after the death of the person who created it.
Q: How much does probate cost?
A: The cost of probate may be set by state law. When all the costs are added up – and the costs may include appraisal costs, executor’s fees, court costs, costs for a type of insurance policy known as a “surety bond”, plus legal and accounting fees, probate can easily cost from 3% to 7% of the total estate value, and more. If the will is contested, costs will increase substantially.
Q: If the estate is quite small, is probate still required?
Possibly. In some states, there are processes often referred to as “simplified procedures” that are used for estates whose value is below certain financial thresholds. The limits can be as small as a few thousand dollars or as much as a hundred thousand dollars. It depends on the court of jurisdiction. This is certainly a matter to consult with an attorney about, but if there is real estate involved or there are debts against the estate, regardless of the size of the estate, the full probate process may be required or advisable.
Q: What is the process of a probate with an uncontested will?
A: Typically, a family member of the deceased goes to an attorney experienced in probate matters, who then prepares a probate petition for the court and takes it, along with the will, and files it with the probate court.
The lawyer for the person seeking to have the will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a will, plus all those named in the will, and give them an opportunity to file a formal objection to admitting the will to probate.
A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. If no objections are received, and everything is in order, the court approves the petition, appoints the personal representative for the estate, orders that taxes and creditors be notified. Also, assuming the personal representative is granted full authority, the personal representative is ordered to obtain a value for the assets in the estate. Once the value of the real property has been established, the property may be listed and sold (under full authority).