The term “probate” gets thrown around quite loosely, but many people (even attorneys!) don’t always understand what “probate” actually means.  To be fair, probate refers to a two different processes.  First, you may hear that someone needs to “probate a will,” which means the act of filing a will with the court after a person dies. However, in a more general sense, the term probate is the method in which an estate is processed through the state probate court system and how a person’s legal affairs are wrapped up after their death.  Basically, the court ensures that debts are paid and that assets (property and money) are transferred to the correct beneficiaries (people who inherit the assets by a will or by inheritance laws).

The two popular misconceptions about probate are that a person has to have a Will to probate an estate (spoiler: you don’t!) and that all the property in the estate is taken care of by the probate process.  Whether a person has a will or not, their estate will go to probate.  If a person has a valid will, then the will determines how the estate will be transferred and to whom.  If there is no will or a person dies and the will only covers part of the estate, the inheritance laws of your state will determine who gets what part of the estate.  Remember, the probate process only handles property in the “probate estate.” The probate estate is only made up of property that a person owned alone.  Property that passes automatically, such as property owned jointly with another person (such as owning a house jointly with a spouse) or to a named beneficiary (for example, in a life insurance policy), is not included in the probate estate. Probate will be filed in the state where the person lived and all that person’s property will be included in the probate estate, except real property in another state.  For example, if a person lives in California and owns a home there and vacation home in Colorado, there must be another probate filled in Colorado just for that piece of property.

How does the probate process work? State courts are responsible for probate, so the laws vary from place to place, however, basically four main things will happen: 1) a personal representative or executor will be sworn in, 2) heirs, creditors, and the public will be notified that the person is deceased 3) property will be inventoried and 4) the estate will be distributed to include paying bills and taxes.

If there is a will and someone was named as the executor or personal representative, they will be given legal rights to handle the estate’s affairs.  If they cannot serve or the person died without a will, the court will choose someone. Commonly, family members such as an adult child or a spouse will request to be named.  Next, the court will notify the public, creditors, and anyone who may have a claim to an estate.  This part is important because it starts the clock for the deadline to file the claim against the estate. Then, the property must be inventoried to make sure there is enough to cover the debts and to ensure all property is accounted for in the estate. A wise tip is to have a list of assets and major debts where it can be easily found to assist the personal representative in a proper accounting, even an outdated list will give them a place to start.  Finally, the property and money will be distributed in this general order: 1) estate administration fees (legal and court fees), 2) family allowances, 3) funeral expenses, 4) taxes and debts, and 5) any remaining claims. 

Marinaccio Law serves clients in business disputes and transactions, civil litigation,estate planning and probate and trust administration, landlord tenant matters, and real estate litigation and transactions. Whether it a dispute on a real estate matter, setting up a small business, filing for bankruptcy, or creating an estate plan, Marinaccio Law will provide individual attention in helping to achieve its clients’ goals. Give us a call today and we’ll discuss the best options for you and your specific situation. Phone: (818) 839-5220 or visit our website at http://www.marinacciolaw.com .