What is Probate?


Imagine if you had a roommate, and one day a stranger showed up at your door waving a piece of paper around, and saying, “Hi, I’m here to pick up your roommate’s TV. I have a copy of emails between he and I about his Craigslist listing for the television, and he said I could just come by and pick it up. I already paid him online. Could you please let me in?”

Chances are, despite the fact that the guy had a piece of paper in his hand stating that your roommate had sold him the TV, you would probably call your roommate and verify with him before you let the stranger walk out with the flatscreen. The document on its own doesn’t prove anything on its own, right? You need to make sure that it’s actually legitimate, before you acted on it.

This goes for wills as well. Wills are just a document. Before a will can be acted upon, it needs to be verified as being a legitimate document that accurately reflects the desires of the person who wrote it. This verification process, and the subsequent process of carrying the will out, is called probate. Probate is the legal process through which a court examines a will, determines whether or not it is valid, and then if it is valid, makes sure that the wishes expressed in the will are properly executed. While probate can be a confusing process, you can generally break it down into six major steps.

#1: Petitioning the court for probate.

When someone writes a will, they name someone who will act as the executor. When the writer of a will dies, the executor files a petition with a probate court in the county where the deceased person lived, asking the court to accept the will and start the process of probate. If an executor isn’t available, an “interested party,” such as a spouse or child of the deceased person, can petition the court for probate. In order to petition a court for probate, the will, along with a death certificate, must be submitted to the court.

#2: Notifying all heirs, beneficiaries, creditors, and the public at large.

Once the court has been petitioned, it will schedule a hearing for probate of the will. But before the hearing, all beneficiaries and heirs must be notified by mail, and a notice of the probate hearing must be published in a local newspaper. This is done so that an heir or beneficiary has the opportunity to file an objection to the probate hearing, if they feel that there is a major issue with the deceased’s will.

In addition, written notice must be given to all known creditors to whom the deceased owed debts. Creditors can include credit card companies, utility and service providers, people who have loaned the deceased money, people who are owed legal damages, and even easy-to-overlook persons such as dentists and doctors. Any such creditor who wants to make a claim against the state has a set period of time in which to notify the probate court of their claim.

Once the executor has mailed all the necessary notices, they must file proof with the court that they have performed their due diligence.

#3: Proving the validity of the will.

On the date of the hearing, the executor must provide the court with statements from witnesses who can testify to the will’s validity. The court will also hear objections from interested parties who contest the will’s validity due to concerns such as coercion, elder financial abuse, fraud, and so on. After hearing all evidence, the court will make a ruling. If the will is found to be valid, the executor will be authorized to continue the probate process.

#4: Inventorying the deceased’s property.

Before you can properly distribute property, you have to know what the property is comprised of. A professional appraiser is appointed by the court to examine all of the deceased person’s assets, including bank accounts, real estate, stocks, business investments, vehicles, and all other physical property, and determine their value. In the case where someone has unusual and potentially valuable property, such as a collection of paintings or antiques, an independent appraiser may be hired in order to obtain an accurate assessment of the property’s value.

#5: Payment of debts and obligations.

A person can’t rightfully choose to give something to another person, if they in fact owe payment to somebody else. Thus, the executor must assess all of the deceased’s bills, taxes, and creditor claims, and use funds from the estate to pay those debts. If there are not enough liquid assets (cash) to pay these debts, the executor can auction the assets in order to secure the necessary funds. The executor will then file documents with the court listing all creditors’ claims, and the debts that have been paid (or contested).

#6: Closing the estate.

Once all debts have been settled, taxes paid, and disputes resolved, the executor will petition the court to have a final hearing to close the estate. A notice must be mailed to all heirs and beneficiaries, informing them of the date of the hearing. At the final hearing, the executor will petition the court for authority to distribute the remaining property to the beneficiaries named in the deceased’s will. When this permission is granted, the executor can file the necessary paperwork to transfer property to the appropriate recipients. After this, the probate process is over.

This is not an exhaustive description of the probate process. Probate is a very complex process, especially when complications arise–such as someone contesting a will–or if the deceased did not leave a will. In any case, it’s advisable to seek legal advice from an experienced probate lawyer for guidance as to what the probate process entails. If you would like more information, please call Toeppen & Grevious at 916-400-4516, or email us using the contact form on our site.