Oct 18

What Is Probate Anyway?


We have people come by or call our office who have lost a loved one and really are lost at what happens next. A lot depends on the estate planning that has been done prior to the loss. If there is a trust then the administration is fairly simple and just goes by what the trust says with only a few legal requirements imposed by law. If there is not a trust but only a will or no will then depending on how much money is at stake or how may debts, the process may be required to go through a legal process called probate.

Probate is a court supervised winding down of the affairs of someone who has passed away. Generally when someone dies, they leave a lot of work behind. There are bills to pay, and property to dispose of. The person who owes those bills and owns the property unfortunately is no longer around to take care of business so someone else has to finish things up. That someone is called an executor in the event there is a will or an administrator if there is not a will. The will names or nominates someone to act as an executor and usually that person has agreed to act before hand, but sometimes not and the nomination comes as a surprise. If that happens and the nominee does not want the responsibility someone else has to step up, usually a relative. The probate code lists a series of people in order of preference who the court can appoint as an administrator or executor.

The person who wants to be or has accepted the nomination to be the personal representative (generic for either an administrator or executor) has to file a petition with the court to initiate the probate process. This involves filing a written request to be appointed the personal representative, having the will admitted to the probate court and the court issuing the personal representative letters of administration. This happens after a hearing that takes place after all the potential known heirs or beneficiaries of the will or the estate of a person who died without a will are given a chance to object to the appointment of the person asking to be appointed. The letters of administration are very important because without them, the personal representative can do nothing as far as opening up a bank account to pay bills or selling property of the estate to generate money to pay bills and expenses, or legally distributing the property that belonged to the person who died to heirs by passing legal title to them. Remember, title or ownership, of the property still rests in the name of the dead person so without the court’s authority to act given through letters of administration, there is no-one with the power to take care of the final business person who passed away.

Generally speaking, before the court will grant anyone authority to administer the remaining property and pay the final remaining bills, the personal representative will have to post a bond sufficient to protect the interests of creditors or heirs that the personal representative might unintentionally or intentionally hurt. As long as the personal representative follows the probate rules the bond is released without a claim made against it. But on rare occasions, it is a good thing to have one in place. Often the will contains a provision waiving the bond, but it is in the court’s discretion to require one, and if the personal representative is outside the state, meaning outside the power of the court to sanction effectively, a bond will in most cases be automatically required, at least that is how it works in San Diego County.
So this is Probate and it is how the final business of a person who has died gets taken care of. Someone has to get the legal authority to collect the remaining assets and pass ownership or title to those assets. That takes a probate court order and supervision to ensure that it is done according to the wishes of the person who died if they left a will or according to the probate law if they passed without a will or trust.

This blog simply contains my thoughts and ruminations on certain subjects. They are thoughts in general and not intended to be given or taken as legal advice. If anything in this entry piques your interest or seems to apply to your situation please do not hesitate to contact us through our website at http://www.schinzelaw.com/ or directly by telephone at (760) 510-4900.

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