What Is the Purpose of Probate?

Real Estate Agent with Versailles Property DRE 01791487,​NMLS1884138

You might have heard someone talk about probate and probate court. They may be commonly referred to in movies and tv shows. However, the truth is many people do not have a clear idea of what probate is and its purpose. 


The purpose of probate is to transfer the property legally after a property owner’s death. It consists of the gathering of all assets and paying off debts. Probate also includes the distribution of any remaining assets in accordance with an estate plan and the law. The Court will issue an order declaring that the Will of a deceased person has been proved and registered in the Court. It will also state that the executor identified in the will has been granted authority to administer the estate. 


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Probate in California


With a few exceptions, probate is necessary in California if an individual has or has not made a will before his death. During this legal process, the financial responsibilities of the deceased person’s estate must be dealt with. The creditors of the decedent’s estate must be notified of the death. All of the estate’s assets will be accounted for, and money will be paid to the creditors. The costs and fees associated with the probate process will be paid by the estate assets. Whatever remains in the estate will be distributed to the decedent’s heirs or beneficiaries. If the person who died has no transferable property, probate is typically not necessary. 


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What Happens If No Probate is Filed?


If you know that someone has died with a will, most states require that you file the will within the probate court. This is regardless of the decedent’s financial situation. 


Here in California, the law requires any person holding the original Will of a deceased person to file the Will with the court clerk of the County where the decedent lived. A copy of the Will must also be mailed to the Executor. If the Executor’s whereabouts are unknown, a copy should be sent to the beneficiaries. 


Note that filing a will isn’t the same as filing probate documents. It is just that — filing the will. 


You could be held liable in both criminal court and civil court if you knowingly neglect to file an existing will. You will have to deal with the resulting damages to any party who would have benefited from the estate. 


Even if you file a will or there is no will at all, it may still be necessary to file probate documents to settle the estate. Here are 3 important reasons why you need to file probate documents:


1. Legal title to assets could be clouded.

Without court approval through the probate process, you cannot legally transfer the decedent’s assets. These include assets such as real estate, a car, or a retirement account without a named beneficiary. 


2. Heirs could have legal claims against you.

If the decedent passed away without a will but had assets, those cannot be legally distributed. The probate court will determine the appropriate priority of inheritance through the state’s intestate succession laws. 


If you fail to file probate documents, the heirs may not receive what they are lawfully due. They could end up suing you.


3. Problems with an existing will could remain unresolved.

Sometimes, there are questions about the competency of the decedent at the time of signing or the validity of the signatures.  If there are such issues, they can only be addressed and resolved through the probate process. 


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Which assets must go through probate?


Following the death of a loved one, you may find yourself looking for information about how to deal with all the stuff and properties the deceased has left behind. It is easy to deal with small items. Your daughter gets dad’s book collection, while your son gets dad’s desk. However, the situation may be more difficult if you are dealing with properties such as a house or a stock portfolio. 


You may be wondering how you can change the legal title to such assets so you can manage them as a trustee or as an executor. If these properties are in a trust, you will find the answers in a properly prepared trust document. In this situation, it is no longer necessary to involve the California Superior Court in the administration of the trust estate. 


However, if your loved one died without a trust, or if he passed away with assets not held in trust, you need to start a probate proceeding. Note that the value of the probate estate should be more than $100,000. 


Usually, the following assets are considered part of the decedent’s probate estate. They are subject to the probate process. 


1. Individual Assets

Individual assets include all properties in the sole name of a deceased without co-owners or payable-on-death and beneficiary designations. These include bank accounts, stocks, investment accounts, bonds, vehicles, business interests, and real estate.


2. Tenants-In-Common Property

Tenant-in-common properties include property held by the deceased as a tenant-in-common with one or more other persons. Each owner has a percentage interest in the property. There do not need to be equal percentages of ownership in a tenancy in common. It can be 50 percent and 50 percent or 70 percent and 30 percent.


Most of the time, real estate is titled this way.This form of concurrent ownership does not require individuals to be married or registered domestic partners. Moreover, they do not need to even live in the property. 


Aside from real estate, other types of assets can be titled this way as well. These may include bank accounts, investment accounts, stocks, and bonds. 


It is important to note that such forms of property should not be confused with assets held by joint tenants or other arrangements with rights of survivorship. Properties owned with rights of survivorship goes directly to the survivor in the event one of the owners dies. Probate will no longer be required, and it will not be included in the decedent’s probate estate. 


If before his death the decedent retitles his tenant-in-common interest into the name of a living trust, this changes the tenant-in-common interest into a non-probate asset.  It can be passed on to the new owner without a probate court proceeding. 


3. Beneficiary Assets With Predeceased Beneficiaries or No Beneficiary Designations

If the beneficiary dies before the owner, even the properties with  beneficiary or payable-on-death designations can become included in the deceased’s probate estate. These might involve health savings or medical savings accounts and life insurance policies. Retirement accounts, including IRAs and 401(k)s and annuities, are also included. 


In case all the named beneficiaries of an account or policy passed on before the decedent, the asset will divert to his estate. They will become part of his probate estate. The same rule is applied when a decedent fails to name any beneficiaries at all, or if he names his estate as the beneficiary.


4. Assets Left out of a Trust

There are some cases when an individual creates a living trust and moves his assets into it. However, this does not necessarily mean that he will have no probate assets at the time of his death. 


Living trusts are one of the means to avoid probate of property. However, years may go by during which the decedent acquires more assets. He may forget to pass all of them to his trust. 


One solution to this problem is to create a pour-over will. This will direct all properties outside of the trust into the trust when the owner dies. However, these properties are still subject to probate. They contribute to the decedent’s probate asset. 


If you have been named executor and you need help in selling real estate in probate, I’ll be glad to assist you. I understand how intimidating the probate process can be. I am here to make sure you understand every step of the process.


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Comments (6)

Roy Kelley
Retired - Gaithersburg, MD

This is good information to share.

Take care, be safe and have a great day.

Feb 28, 2021 05:05 AM
Anna Chroscicki
Re/Max Masterpiece Realty - Port St Lucie, FL
Realtor - St. Lucie County affordable Real Estate

 Very Good Information. Tip- make sure you hire good attorney to work on probate. 

Jan 20, 2022 09:10 AM
Deepak Chauhan Asso-Broker, MLO

Thanks for stopping by, I have a few on speed dial.

Jan 20, 2022 01:55 PM
Roy Kelley
Retired - Gaithersburg, MD

Thanks for your comment on my recent post.

Have an outstanding 2022!

Feb 07, 2022 05:56 AM
Patricia Feager, MBA, CRS, GRI,MRP
Selling Homes Changing Lives

Deepak Chauhan - What a great and educational blog post! Probate is something I take very seriously. I recognized early on that if I can't make decisions about what happens after I die while I am still alive, I would be doing my children a big disservice. In Texas, I have what's called a Lady Bird Loophole. Now, my property is protected. I wish all states offered it. 

Mar 12, 2022 04:11 AM
Deepak Chauhan Asso-Broker, MLO
Versailles Property - Irvine, CA
Your Solution-Oriented Realtor

Patricia Feager, MBA, CRS, GRI,MRP It is an excellent idea to have a Living Trust done, and it costs around $1,000.00. More than saving estate money, it keeps the unity in the family. I see beneficiaries fighting like arch enemies to take control over the estate. 

Mar 12, 2022 06:42 AM
Endre Barath, Jr.
Berkshire Hathaway HomeServices California Properties - Beverly Hills, CA
Realtor - Los Angeles Home Sales 310.486.1002

Deepak what a great post, we look forward to your next post, Endre

Jul 04, 2022 09:57 PM