Practice Areas

What is probate?

Probate is a legal proceeding used to gather and value assets, pay creditors and taxes, tidy up loose ends and ultimately distribute the property left behind by someone who passed away. The primary difference between probate and trust administration is that probate is done through a court proceeding, whereas trust administration can be private and done completely without any court review or intervention. When someone leaves behind a will, one of the court’s roles is to ensure that the deceased’s wishes regarding who is to receive their property are carried out as they intended. When someone dies without a will or trust, the court will follow the laws of intestate succession by which the State of California has determined a person’s property should be distributed to their heirs based on how closely they are related to the deceased.

Probate is also means by which the creditors of the deceased can have their debts paid to the extent that there is property in the estate. Contrary to a popular belief, the heirs of beneficiaries do not inherit debts, but it is possible for debts to eat up the estate and leave little to nothing left for distribution. If debts are not paid in full, the remaining balance will be unenforceable (similar to a discharge in bankruptcy).

While probate proceedings can become incredibly complex and involve non-probate laws, even the most simple probate has many issues which need to be addressed, such as when there is a challenge to the will, whether the personal representative (an executor or administrator) should be required to post a bond and if so how much, what debts should be paid, should the deceased person’s business continue to operate, what happens to any lawsuits the deceased person was involved with, issues regarding title to property, what happens if someone holding property will not turn it over and so on and so on. As experienced probate lawyers, we will help avoid potential pitfalls and will help make the process as seamless as possible.

Initiating Probate

The opening of a probate proceeding and the appointment of a personal representative requires that the court make four basic determinations: If there is a will, will it be proven to be valid and be controlling in the proceeding, who will be personal representative, will that person be granted authority to act pursuant to the Independent Administration of Estate Act (IAEA) and will the posting of a bond be required.

Admission of Will to Probate

Even when a person has a will, there can be many obstacles to having it admitted to probate so that the person’s wishes as stated in the will are followed. Wills can be holographic, meaning that they have been handwritten by the deceased person. In order to be admitted to probate, this type of will must be in the decedent’s own handwriting, must have some indication that it is intended as a will, and must be signed by the deceased person. While it is best for such a will to be dated, that is not an absolute requirement.

A typed or printed will must be signed by the deceased as well as two other individuals who witness the signing of the will. It may become necessary for the witnesses to sign a document to be filed in the probate proceeding or even appear in court to testify.

Heirs or beneficiaries can contest the admission of the will to probate on grounds such as fraud, indue influence, duress or lack of capacity by the deceased person. Such a contest can ultimately require the retention of experts and can ultimately require a trial in the probate court to resolve.

Appointment of a Personal Representative

If the deceased person had a will, it will typically name a person to act as the personal representative, or executor of the will and the estate. If there is no will, if one person wants to act as the personal representative, or administrator of the estate, that person will most often be appointed. But if two or more persons petition to act as administrator or someone object to the person seeking appointment, ultimately, it will be up to the judge to decide who is to act and may even require a trial to make that determination before the probate process can even get started.

What is the Difference between an Executor and an Administrator?

An executor is a person who has been specifically named in the will of the deceased person to act as such. An administrator is a person who is appointed by the court when there is no one named in a will to act or when there is no will. After being appointed, whether as administrator or as executor, the duties are essentially the same.

THE INDEPENDENT ADMINISTRATION OF ESTATES ACT

Also to be determined in connection with the appointment is whether the personal representative (an executor or administrator) has “full authority” or “limited authority” to act, or can even act at all, pursuant to the Independent Administration of Estate Act (IAEA). The IAEA is designed to ease the administration of an estate by allowing the personal representative to take certain actions by giving notice of the proposed action to the beneficiaries, who can consent or object to the proposed action. If there are objections, the personal representative can generally proceed with the proposed action.

With only limited authority, the executor or administrator will only be able to sell real estate in accordance with a court supervised procedures which will require a court hearing to confirm the sale. A notice that the sale is going to be conducted will have to be published in a local newspaper and other prospective buyers an come in and overbid the property, by agreeing to pay a higher price. Because of the delays and uncertainty of being able to complete the sale, the property may sell for less than it would without these obstacles but could, in fact, be sold at a higher price due to the overbidding process.