Probate: The answers to the FAQs are intended to provide general information regarding Probate, the Probate Process, and Probate real estate. Depending on the context, certain words can take on different meanings. These terms used here are not intended in any way to provide, or substitute, legal or tax advice. Always consult with an attorney if you have legal questions and a tax professional if you have tax questions.
Questions Regarding Probate
What is Probate?
Simply stated, Probate is a court-supervised (legal) process to administer a Will. Probate is a process for assembling assets and paying debts. Probate allows the transfer of a deceased person’s assets to the decedent’s heirs. This includes administering the Estate of someone who died Intestate, or without a Will. Probate takes place in the county where the decedent resided at the time of death.
What happens if someone dies with a Will?
If someone dies with a Will they are said to have died testate. A Will typically names an Executor. The Executor “executes” the terms of the Will fulfilling the wishes and desires of the deceased person. The terms of the Will are validated as part of the Probate Process.
What happens if someone dies without a Will?
If someone dies without a will they are said to have died intestate. Without a Will, someone, typically a family member, or close friend, will need to Petition the Probate Court to be appointed Administrator of the Estate. Once appointed by the Probate Court, the Administrator’s role is to liquidate the Estate under the court’s supervision.
What is the difference between Administrator and Executor?
An Administrator is a person appointed by the Probate Court to administer the Estate of a person who died intestate, or without a Will. An Administrator is also appointed by the Probate Court when a Will does not name an Executor, or if the person named as Executor in the Will is unwilling or unable to serve. An Executor is typically named in a Will and is appointed by the Probate Court to execute the terms of the decedent’s Will. The Administrator and Executor are commonly referred to as the Personal Representative or PR.
What is an Administrator with Will Annexed?
This person is appointed by the Probate Court but is not the person who was named in the Will to act as the Executor. This court-appointed representative administers the Estate of the decedent who died with a Will, under the Independent Administration of Estates Act (IAEA).
What is the Independent Administration of Estates Act (IAEA)?
The IAEA allows the Personal Representative to administer most aspects of a decedent’s Estate without court supervision. The authority to act under IAEA may be given by the Will or the Personal Representative may Petition the Probate Court for such authority. It is typically requested on the Petition to initiate Probate.
When does the Probate Process start?
The Probate Process starts when a petition for probate is filed with the probate court. Either the Executor named in the Will or usually a family member if there isn’t a Will, petitions the court to be appointed Executor or Administrator. Although a probate attorney is not required to start the probate process in California, most people do hire a probate attorney.
Can Probate be avoided?
If a decedent’s Estate meets the requirements of California Probate Code § 13100 et seq., it may avoid Probate, allowing the transfer of personal property to be transferred directly to an Heir.
Probate can also be avoided with probate estate plan documents. Attorney Scott Carter discusses this in a short How to Avoid Probate video.