What is “probate”?

It is a court process where a decedent’s assets are taken over by an appointed “personal representative”, the last debts and bills of the decedent are paid, and the assets are eventually distributed to the beneficiaries named in the Will or if there is no Will, the decedent’s heirs.

What Assets Have to Go through Probate?

Probate only applies to assets that are owned, or titled, in the individual name of the decedent at the time of their death.  Probate does not apply to assets in joint tenancy with right or survivorship, IRAs and life insurance where there are beneficiary designations, pay-on-death accounts or transfer-on-death accounts, or any assets held in a living trust.  Since a majority of assets are held in one or more of these types of ownership, it can be rare when a probate is actually required.

Are There Alternatives to Probate?

Yes. In California you can pass up to $150,000 of property (not including real estate) without having to go through probate.  Instead, you can use a small estate affidavit, also referred to as a “13100 Declaration”. Probate Code Section 13100 governs the transfer of small estates.  For real property, the limit is $50,000 that can pass without probate.  That is a very small number for California real estate, so real property almost always must be probated if it is held in an individual’s name and not in joint tenancy at time of death.

What is the Difference Between an Executor and An Administrator of An Estate?

When a probate case is filed, the court appoints someone to handle the estate and report to the court. This person is generally known as the “personal representative”. Executor or Executrix (if the person is a female) is the traditional term for the person named in a Will and appointed by the probate court to oversee the estate. If the person died without a Will, the person appointed by the probate court to handle the estate is known as the Administrator or Administratrix.

Whether you’re an Executor. Executrix, Administrator or Administratrix your duties in managing the estate, to the court and the beneficiaries are the same.

What Are “Letters Testamentary” or “Letters of Administration”?

When a family member tries to wrap up a decedent’s assets, they are told by a bank or financial institution that they need “Letters Testamentary” or “Letters of Administration.”  These “letters” are not drafted by lawyers.  They are documents issued by the Court after a probate case has been filed and the Court has signed the order appointing the personal representative, Executor or Administrator.

What Estates Have to Go Through Probate?

When a person dies owning assets in his or her own, individual name worth more than $150,000 (not including real estate), then you need to file a probate case to transfer the decedent’s assets to the beneficiaries under the Will or to the decedent’s heirs.  If the decedent owned real property worth more than $50,000 in his or her own name, then you must go through to probate.