What is Probate?

Probate is a method of transferring assets under court supervision as provided in a will, or, if a person dies without a will, of transferring assets under court supervision to heirs in accordance with state law.

Assets in the decedent’s name alone (separate property) must be probated to transfer title. Community and quasi-community property must be probated if it is left by will to someone other than the surviving spouse. Assets that cannot be controlled by a person’s will are not subject to probate. They include:

  1. assets in joint tenancy.
  2. life insurance policy proceeds.
  3. death benefits from qualified retirement trusts, Keogh Plans, IRAs.
  4. assets held in living trusts.

If the decedent left a valid will, the will is filed on death in the probate court, and the court, if it accepts the will, appoints an executor. If the decedent left no will, the court appoints an administrator to serve. The executor or administrator are fiduciaries whom the court supervises.

The executor or administrator must collect assets subject to probate, pay debts and death taxes, and request court approval to transfer assets to the decedent’s heirs or to the persons named in the will. The fees charged by executors or administrators and their attorneys are determined by state law (see, Table: California Statutory Commissions and Fees).

The estate pays income taxes due on the income of probate assets until the assets are distributed or the estate is closed. The usual duration of probate is from nine months to two years. The size and complexity of the probate estate determines the duration of probate. A complicated probate can continue beyond two years.

The court grants the executor or administrator approval for transfer of probate assets to the heirs or to persons named in the will. On final distribution and transfer of all probate assets, the court discharges the executor or administrator.

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