What is Probate?
Answers to a few of the most commonly asked questions about what probate is and when it should matter to you
What is probate? What is an Estate?The word “probate” is used as both a noun and a verb.
As a verb, probate is the act of distributing an individual’s assets, and settling their debts through court action.
As a noun, probate refers to a legal subject matter including conservatorships, wills, trusts, and the like.
Someone’s “estate” includes all the money and property owned by that person.
When do I need to probate an estate?In order to make this determination, you must first answer some questions regarding estate value, titled ownership, and relationship to the person who died.
If the estate of person who died is valued at less than $150,000 in assets at the time of their death, and the beneficiaries of these sums can be easily determined, you may not need to go to court. In this case, ownership can be transferred by affidavit.
If the estate of the person who died is valued at more than $150,000 you must go to court and start a probate case.
What is an Executor of an estate? What is an Administrator of an estate?An executor (a role identified in a will or trust) is a person identified by the person who has died and is responsible for finding the assets of a deceased person and distributing them to the inheritors.
An administrator of an estate is similar to the executor and has similar duties. The difference between these two roles is that an administrator is appointed by the court when no will is left by the person who has died.
What is fiduciary duty?A “fiduciary” is someone who is responsible for money. “Fiduciary duty” refers to the legal responsibility a fiduciary has to act in the best interest of the beneficiary of that money.
What happens if other family members object to either a will or executor/administrator's decision?You must have a reason accepted by the court to contest a will in California. An interested person can contest a will if there was fraud involved in its making, or if the document does not meet the standards of a will in the state of its creation. The court might accept other reasons for a will contest, but an interested party can’t contest a will simply because he or she doesn’t feel the provisions are fair.
Can creditors take part of the estate of a person who has passed away?Notifying creditors of the death is part of the probate process. Creditors must file a claim with the courts for the amounts due. If the executor approves the claim, the bill is paid out of the estate. If the executor rejects the claim, the creditor must sue for payment. If there is not enough money to pay all debts, state law determines who gets paid first.