Probate

What is probate?

Probate is a legal process that occurs upon the death of an individual.  It usually can encompass the following actions: 

1. Establishing the validity of the decedent’s will
2. Identifying and inventorying the deceased person's assets
3. Appraising all the decedent’s property
4. Paying all debts and taxes owed by the decedent, and
5. Distributing all the remaining property as the will (or state law, if there's no will) directs.

Typically, probate involves the filing of paperwork and court appearances by lawyers.  The fees are normally payable from the assets of the decedent.  The person named in the Will as the executor is responsible for this process and may hire an attorney to assist.  If no Executor is named in the Will or no Will exists the court will appoint someone to administer the estate.

Does everyone have to go through Probate?

No, not every estate must go through Probate.  For example, California law states that you can pass up to $100,000 of property without probate or through a simplified probate process.  Also, there is a simple transfer procedure for any property left to a surviving spouse. 

Important to note:  Any property that passes outside of your will (e.g. through joint tenancy or a living trust) is not subject to probate.  It is always better to avoid the probate process.  It is time consuming and costly to the surviving heirs of the estate. 

Should I do Planning to Avoid Probate?

This depends primarily on your net worth and the type of assets you own.