What is Probate, and Who Has to Deal With It?

Dealing with the death of a loved one is for most people the most trying time in their life. It can be especially difficult if you are in the position of having to deal with the person’s affairs after they die. Courts in the United States use a process called probate, which is simply a system of supervising the organization and distribution of a person’s assets after their death. In order to fully understand probate, it is important to understand a few significant terms in this area of law.

The probate system in the United States allows for people to undertake the organization of their affairs before they die if they choose. Most of the time, the people who choose to embark upon this task use a device called a last will and testament. This device is often referred to simply as a will. A will is a written instrument that describes the manner in which a person’s assets, debts, and wishes are to be dealt with after they die. Many times a person who has died after preparing a will is referred to as a testator or as the decedent. People who die with a will are said to have died testate. If a person dies without having prepared a will, that person is referred to as a decedent and is said to have died intestate (without a will.)

In addition to a will, a person can choose to arrange their affairs using a device called a will substitute, that is, a device that circumvents the formalities of probate, and allows the assets controlled by the device to pass to a named beneficiary, which was chosen by the decedent prior to death. Will substitutes are instruments such as life insurance policies, revocable living trusts, pay on death (POD) accounts, and real property titled in joint tenancy.

Regardless of whether a person dies with or without a will, any assets that are not provided for by a will substitute must be accounted for and their distribution supervised by the court holding probate. If the assets are to be distributed according to a will, the court will determine whether the will is valid and appoint an executor according to the terms of the will. If there is no will, or the will is deemed by the court to be invalid, the court will appoint a personal representative from a statutory list of heirs of the decedent.

In the State of California, there is a simplified process for handling estates valued at $150,000 or less if the property is comprised of personal property and not real estate. Whether the estate is considered simple or complex, is comprised of all personal property, or a mix pf personal and real property, some level of supervision will be undertaken by the court to see that the decedent’s wishes are carried out, or their assets appropriately distributed to their heirs at law after their death. The more organization undertaken by the decedent during their life, generally the less supervision that is needed by the court.

If you are in need of advice related to handling the affairs following the death of a loved one, or if you are in need of estate planning, please contact us to see how our experienced estate planners can help!

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