General Info

Letter examples
  • Sample 1 Probate Letter sample 1.pdf
  • Sample 2 Probate Letter sample 2.pdf
  • Sample 3 Probate Letter sample 3.pdf
  • Sample 4 Probate Letter sample 4.pdf
  • 1. What is probate?

    Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the "decedent") to his or her beneficiaries.

    Usually, you have to fill out court forms and appear in court to:

    • Prove to the Court that the Will is valid (this is usually routine),
    • Appoint a legal representative with authority to act on behalf of the decedent,
    • Identify and inventory the decedent's property, and have that property appraised,
    • Pay debts and taxes, and
    • Distribute the remaining property according to the terms of the Will or to the decedent's heirs.
2. Is probate necessary?

If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims. When there is property to transfer, the probate process also provides for the distribution of the estate's property to the decedent's heirs.

3. Does all property go through probate when a person dies?

No. The term "probate estate" refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person's “non-probate estate.” California has "simplified procedures" for transferring property for estates worth under a certain amount (from $20,000 to $150,000 depending on the circumstances and the kind of property). There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy or Community Property with Right of Survivorship, and life insurance and retirement benefits.

4. How much does probate cost?

The cost of probate is set by state law. When all the costs are added up – these may include appraisal costs, executor's fees, court filing fees and certified copies, costs for a type of insurance policy known as a "surety bond," plus legal and accounting fees--probate can cost from 4% to 7% of the total estate value, sometimes more. If someone contests the Will, there could be thousands of dollars of litigation costs.

5. How long does probate take?

California law says the personal representative must complete probate within one year from the date of appointment, unless s/he files a federal estate tax. In this case, the personal representative can have 18 months to complete probate. If probate has not been completed by that time, the personal representative must file a status report to the court to explain what still has to be done and how much time that will take.

If the personal representative does not report to the court, the beneficiaries can ask the court to order him or her to file an accounting or take other actions to close probate. The court can remove the personal representative and appoint someone else. Sometimes there are circumstances that can make probate take longer.

If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.

6. Who is in charge of the probate process?

If there is a Will, the person named as executor will usually be appointed as the personal representative – this means s/he is responsible for managing the estate and following probate Rules of Court and procedures. The executor has no authority to act as personal representative until s/he is appointed by the court and formal "Letters Testamentary" are issued by the Court Clerk.

If there is no Will, or if the Will doesn’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the probate court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent's assets.

7. Who can be the personal representative?

The personal representative does not have to be a legal or financial expert. But, s/he must have reasonable prudence and judgment and be very careful, honest, loyal, impartial and diligent. This is called a "fiduciary duty" -- the duty to act with good faith and honesty on behalf of someone else.

The personal representative should have good organizational skills and be able to keep track of details. It is preferable if he or she lives nearby and is familiar with the decedent's finances. This makes it easier to do tasks and find important records.

8. Do I have to use a lawyer for the probate process?

No. But, it may be a good idea if the estate is complex. A lawyer can help you meet all deadlines and avoid mistakes and delays. A lawyer can sometimes help avoid disagreements among family members over minor or major issues.

9. What if the decedent owned land in more than one state?

The probate laws of the state in which the decedent was a permanent resident determine who will get the decedent's personal property (wherever it was located) and the decedent's real property located within the state. This is why probate is almost always filed in the decedent's home state.

If the decedent owned real property in another state, that state's laws determine how the real property will be distributed. There will be probate in each state where there is real property, in addition to the home state. Each state has its own method for distributing the decedent's real property. Even if there is a Will, the Will is first admitted to probate in the home state, then it must be submitted to probate in each state in which the decedent owned real property.

The extra probate procedure is called "ancillary probate." Some states insist upon the appointment of a personal representative who is a local resident to administer the property in that state.

10. As an heir, how do I stay informed of what is happening in the probate case?

You will automatically get notice of certain petitions filed, including the petition for appointment of the personal representative and the final petition when it is time for the estate to be closed and distributed. If the personal representative wants to sell real property, you should also get a Notice of Proposed Action.

If you want to get copies of everything filed in the probate court concerning the estate, file a Request for Special Notice. There is no fee to file this document. You can contact the personal representative directly if you have any questions. You can also contact the attorney for the estate.

But, keep in mind the attorney works for the personal representative and not the heirs. If you have concerns about the way the personal representative is handling the estate, talk to a lawyer.

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