Probate is the court-supervised process developed under California law to transfer your assets at your death to the beneficiaries named in your will and in the manner prescribed by your will. It also provides for the disposition of creditors’ claims who have claims against your estate at your death.
The probate rules are the same whether the jurisdiction of the court is in Los Angeles County, Ventura County, Orange County or Santa Barbara County; local rules may differ from county to county, however.
At the beginning of a probate, a petition is filed with the court and is usually filed by the person or institution named in your will as executor. After the publication of notice, and after a hearing is held, your will is admitted to probate and an executor is appointed. If you die without a will, described as “intestate”, your estate is still subject to probate and the person appointed by the court to handle the probate is known as the “administrator.”
If the assets owned at death do not include an interest in real estate and have a total value of less than $100,000, then a statutory procedure to transfer those assets pursuant to your will can be used without a formal court-supervised probate administration; debts and expenses must still be paid.
A probate has advantages and disadvantages. You are assured that the actions and accountings of your executor will be reviewed and approved by the probate court. Second, the probate court is used to resolving disputes about the distribution of your assets in relatively short order and according to defined rules.
Disadvantages of a probate include the fact that a minimum of nine months is required from beginning to end; distributions can be made pursuant to a living trust more quickly than in a probate proceeding. During that period of time, if the real property has a mortgage, the payment of the mortgage is required if foreclosure on the property is to be avoided. Another disadvantage is probate’s public nature; your estate plan and the value of your assets become a public record. Also, because lawyer’s fees and executor’s commissions are based upon a statutory fee schedule, the expenses may be high.
The advantages and disadvantages of a probate proceeding should be discussed thoroughly with your estate planning lawyer. You may call Mitchell A. Port to discuss this and other estate planning concerns; his number is 310. 559.5259.