Probate FAQ

The answers to these frequently asked probate questions provide general information about California probate procedures. They are not intended to substitute for legal or tax advice. Consult a probate attorney for legal questions and a qualified tax professional for tax matters.

If you need a probate attorney referral or assistance listing a probate home for sale, contact Kathleen Daniels, Certified Probate Real Estate Specialist and Broker, serving Santa Clara County.

FAQs

What is Probate?

Probate is the court-supervised legal process of administering a deceased person’s estate. It generally involves identifying and managing estate assets, paying valid debts and expenses, and distributing the remaining property to beneficiaries or heirs.

Probate may be required whether someone dies with a Will or intestate, meaning without a Will. In California, probate proceedings generally take place in the county where the deceased person resided at the time of death.

What happens if someone dies with a Will?

A person who dies with a valid Will is said to have died testate. The Will typically names an Executor to administer the estate.

If probate is required, the court determines whether to admit the Will to probate and appoints a personal representative. The Executor administers the estate according to the Will and applicable California law.

What happens if someone dies without a Will?

A person who dies without a Will is said to have died intestate. If probate is necessary, an eligible person may petition the court to be appointed Administrator.

Once appointed, the Administrator manages estate assets, pays valid debts and expenses, and distributes the remaining property to the legal heirs according to California intestate succession laws.

What is the difference between an Administrator and an Executor?

An Administrator is appointed by the court to administer an estate when the deceased person did not leave a Will.

An Executor is named in a Will and appointed by the court to administer the estate according to the Will and California law.

Both are commonly referred to as the Personal Representative of the estate.

When a person dies with a Will but no named Executor is available or willing to serve, the court may appoint an Administrator with Will Annexed.

What is an Administrator with Will Annexed?

An Administrator with Will Annexed is appointed by the court to administer an estate when the deceased person left a Will but no named Executor is available or willing to serve.

This personal representative administers the estate according to the Will and applicable California law. Authority under the Independent Administration of Estates Act (IAEA) depends on the court’s authorization.

What is the Independent Administration of Estates Act (IAEA)?

The Independent Administration of Estates Act (IAEA) allows a court-authorized Personal Representative to perform many estate administration tasks without obtaining prior court approval for each action.

The court may grant full or limited authority. Certain transactions still require notice to interested parties, and some actions require court approval.

IAEA authority is commonly requested when the initial Petition for Probate is filed.

When does the Process start?

The Probate Process begins when a Petition for Probate is filed with the appropriate Superior Court.

The person named as Executor in the Will, or another eligible petitioner, may request appointment as the estate’s Personal Representative.

California does not generally require a person to hire an attorney to file a probate petition, although many Personal Representatives choose to work with an experienced probate attorney.

Can Probate be avoided?

Yes. Depending on the estate’s assets, ownership arrangements, and applicable California law, formal probate proceedings may not be necessary.

For example, California Probate Code §13100 provides a procedure for collecting certain personal property through a small-estate affidavit when the statutory requirements are satisfied. The applicable dollar limit depends on the date of death.

Other circumstances, such as assets held in a properly funded living trust or property passing directly to a surviving joint owner or designated beneficiary, may also avoid formal probate.

Estate planning attorney Scott Carter discusses additional considerations in our How to Avoid Probate video.