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What is probate and why would I want to avoid it?


Probate is the court-supervised process by which your assets are gathered up and inventoried, any debts you have are paid, and any remaining assets are distributed.  Most people want to avoid it because it is expensive, time consuming and public.  Probate is technically defined as the court procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to refer generally to the legal process wherein the estate of a decedent is administered.

The main reasons to avoid probate are that it is expensive, time-consuming and become a public record.  Its only benefit is court-supervision, which for most people is not a real benefit at all.  Under California Probate Code §13.100, if your probate estate if valued under $150,000, your assets may avoid probate and be transferred by a declaration.  Otherwise, in order to transfer title of any property the estate must pass through probate.

Probate is started by someone filing a probate petition, along with a copy of any will drafted by the decedent.  The attorney representing the person named in the will to be the executor, or if there is no will, by the decedent’s spouse or child, usually does this. Then copies of the petition are sent to everyone named in the will as well as all the intestate heirs.  Also, a copy of the petition must be published in a local newspaper.  Four to six weeks after the petition is filed with the court, the court holds its first hearing to determine who shall be named the executor or administrator (an administrator works just like an executor but is the term used if there is no will) of the estate.  Once this person is finally chosen, anyone who believes the decedent owes them money must file a creditor claim.  The executor then has the job of marshalling the decedent’s assets, and evaluating the creditor claims.  The valid claims are paid and they may or may not be litigation over disputed claims.  Once all the claims are resolved, all the assets have been properly appraised and evaluated, and any challenges to the will itself have been resolved, the Executor or Administrator then proposes to the court a distribution plan.  Once the court approves it, the estate is distributed and probate is finally closed.

Frequently Asked Questions about Estate Administration