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What Does “Probate a Will” Mean?

When an executor is asked to “probate a will,” it means initiating the probate process. The executor does this by filing the correct paperwork, namely the petition for probate and the original will, with the probate court. The executor will be required to prove a will, meaning they need to show that the will was executed adequately under state law and signed by someone with testamentary capacity. “Testamentary capacity” means the individual was over the age of majority and had the legal and mental ability to make a will at the time of signing.

When dealing with matters regarding probate, or any issue concerning the death of a relative or close friend, it is often recommended to consult a third party, preferably one with a history in dealing with the subject, such as an estate attorney. To speak with our law office, call (805) 244-5291

What Happens After the Probate Petition is Filed?

After the probate process begins, the executor may be required to do any or all of the following steps:

  • Create an exhaustive inventory of the deceased person’s real estate and personal property. An inventory should include:
    • Checking and savings accounts, money market accounts, or CDs
    • Partnerships, corporations, LLCs, or other business interests
    • Copyrights, patents, trademarks, or other intellectual property
    • Life insurance, disability insurance, annuities, or other types of insurance policies
    • Brokerage accounts, margin accounts, IRAs, health savings accounts, and college savings accounts
    • Personal residences, investment properties, or other real estate properties
    • Heirlooms, collectibles, antiques, or other personal effects
    • Household items
    • Vehicles
  • If necessary, liquidate as many available assets to pay off outstanding debts or any taxes that the deceased’s estate may owe.
  • Obtain multiple copies of the death certificate to file with the probate court and notify banks, creditors, and the Social Security Administration. You may also need death certificates to claim some life insurance policies.
  • Schedule an appraisal of the deceased’s property to determine value.

What if the Deceased Did Not Have a Will?

If an individual passes without the will, it is called intestacy. It is said that person has “died intestate.” If a party dies with no valid will, it is total intestacy. Partial intestacy is when a will is present but does not designate all of the deceased’s assets. Laws regarding intestacy differ from state to state, making it paramount to work with a local lawyer familiar with the laws governing your county or state when dealing with estate matters.

Estates that enter a state of intestacy usually adhere to the following line of succession, depending on the state:

  • Spouse or domestic partner
  • Descendants
  • Parents
  • Siblings
  • Nephews/nieces
  • Other individuals on the family tree

Is There a Way to Simplify Probate in California?

California is a state that offers simplified procedures regarding estate transfer without a formal probate process. The simplified system can directly transfer the deceased’s property to the intended recipient. Depending on the estate’s circumstances, it may not require probate. If the estate’s value is under $150,000, it may qualify for a simplified procedure or non-formal probate. The type of property involved in the estate transfer may also affect the need for formal probate. Life insurances, retirement accounts, bank accounts, properties covered in a living trust, and certain governmental benefits could all have named beneficiaries, allowing the asset to skip the probate process.

There are also other methods to simplify the probate process. If the deceased and a survivor had joint tenancy on a property, the surviving owner would automatically receive the parcel. Likewise, the surviving spouse will likely obtain the entire asset if the property is community property.

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Estate Planning Attorney Eric Ridley