Glossary of Important Probate Terminology

Probate

When a person dies, their last will and testament (assuming they prepared on in advance) is handled and their wishes for the distribution of their personal property implemented through a process called probate. Probate simply means the procedure by which their last written directives are legally certified as the final statement of their wishes regarding their worldly possessions (including any property or properties they may have owned).  It also confirms the appointment of a person or entity the deceased person selected to administer their estate.  The term probate is also frequently used to refer to the entire process of “probating” an estate.  In this usage, it refers to the entire process that gathers all available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.

The personal representative (also known as the executor or executrix) who is named in the will is legally in charge of this process and is responsible for handling the orderly method for administration of the estate as set forth by the probate laws and procedures of their state. The executor is typically held accountable for their actions and decisions by the heirs and other beneficiaries and in some cases may be formally supervised by a probate court. If a will does not exist or a personal representative is not designated in the will, the court will appoint one (assuming there is personal property to distribute).

The personal representative is often entitled by law to a reasonable fee or commission for their services.

Probate law generally encourages or provides for partial distributions of funds during the period of administration and assets are often distributed “in kind” rather than sold during this period. Tax laws generally look to the personal representative as being responsible for making death tax filings and other tax payments from the outstanding assets of the deceased.  Therefore, choosing an executor/executrix/personal representative is an important decision.

The basic job of administration and accounting for assets must be done whether the estate is handled by a personal representative as part of the probate process or if probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (such as revocable trusts, etc.) in states where the probate process has been seen to be too slow and overly expensive. In recent years, many states have simplified or streamlined their probate processes and, in such states, there is now less reason to employ probate avoidance techniques.

Probate Court

A probate court, which is sometimes referred to as a surrogate court, is a specialized court and legal process that deals with matters pertaining to the probate and the administration of the estate of deceased persons.

These specialized courts ascertain and oversee that proper administration and distribution of the assets of a decedent (one who has died), determine and certify the validity of wills, enforce the provisions of a valid will (by issuing the grant of probate), prevent improper action or malfeasance by executors and administrators of estates, and provide for the equitable distribution of the assets of persons who die intestate (without a valid will). In such cases, the court may appoint a personal representative to administer the matters pertaining to an estate.

If there are disputes regarding an estate, the probate court ultimately decides who is to receive the property of a deceased person. In a case of an intestacy, the court determines who is to receive the deceased’s property under the laws it is governed by. The probate court will oversee the process of distributing the deceased’s assets to the proper beneficiaries. In some states or jurisdictions, probate courts are also referred to as orphans courts, superior court, courts of ordinary or other names. Not all jurisdictions have specific probate courts and, in some locales, probate matters are handled by a chancery court or another court of equity.

The probate court can be petitioned by parties that are interested in or who have claims against an estate, such as when a beneficiary feels that an estate is being mishandled or someone to whom the decedent owed money. The court has the authority to demand that an executor, executrix or personal representative give an account of their actions on behalf of an estate.

 



When You Need Help at the Death of a Loved One

This may be one of the most stressful times you will ever experience. We at Today’s Real Estate Solutions have both been through this experience. We know what you are going through and would like to make it as easy as possible for you. It is important that you choose a Realtor who has compassion, experience, and knowledge to help you through this difficult process. While probate and trusts can be complicated, we would like to simplify the process for you.

We will help you by working closely with your probate attorney throughout the entire process. This will include the quickest, most efficient, and effective way to prepare and sell your property. There are definite ways to save on probate costs and taxes. We will also ensure that the mandatory requirements of the Probate Code are met so that the sale of the property goes through as smoothly as possible. We will get you the highest and best market price for your property. Our many services also include: Estate Sales, Contractors in case of repair, clean out crews, staging the property for the best sale price, the sale itself, and the follow-up to complete the process.

What is Probate?

In the State of California, probate is the court-sanctioned process for transferring the property of the deceased to the living heirs. It serves many purposes, such as gathering and safeguarding the deceased’s assets, paying debts to all legitimate creditors, and distributing the assets to the appropriate heirs. In the process, the court supervises the transfer of legal title of the property from the estate of a person who has died (the “Decedent”) to his or her beneficiaries. This process usually takes 9 – 12 months.

Via a “Letters & Order document, a California judge appoints a personal representative for the Decedent’s estate. The personal representative will work with the Realtor and attorney to shepherd the estate through the process.

Probate is not always required to sell real property owned by the Decedent. For example, many Californians have Living Trusts. This Trust makes it possible to avoid the probate process. The creator of the Living Trust is called the Trustee. As long as the Trustee(s) are alive, they are in charge of their Trusts. A Living Trust usually appoints a Successor Trustee who will execute the Trust, in accordance with the Trust’s terms, when the Trustee dies. A Living Trust avoids probate. However, there are formal steps that must be done to ensure the proper execution of the Trust, to carry out the Trustee’s wishes, and be in compliance with the California Probate Code. This process is known as trust administration.

If you are interested in being prepared to save your family time, expense, and unnecessary grief, way before Probate is needed, let us help you with the real estate component of your estate planning. For example, there are eight ways you can take title to your property: sole ownership, joint tenancy, tenancy in common, community property, community property with right of survivorship, corporation & LLC, partnership, and a trust. There are pros and cons to each method. Let us help you with this very important decision. It is not too late to change the title and save a great deal of money in taxes.

Whatever you may need with respect to the ownership of your property or working your way through the process of dealing with a loved one’s property after death, we can help you. Today’s Real Estate Solutions’ team has experience, compassion, and knowledge. Let us help you!


Larry E. Morris

Email: larrymorris@cox.net, (949)235-8331


L. Joyce Arntson

Email: joycearntson@cox.net, (714)87-3605