What is Probate?
When someone dies, probate is the legal process used to locate and safeguard the assets in the deceased person’s estate. All debts of the estate will be satisfied during the probate process using the estate assets (money, investments, property, etc.). The assets will be inventoried, or marshaled, and the creditors will be paid. The net assets are then distributed to the beneficiaries of the will or, if there is no valid will, the legal heirs of the estate. Even if the decedent left a will, the process is required in order to validate such will. If there is no valid will, the state inheritance laws control the distribution of the assets.
How does the probate process begin?
The fist step in probate administration starts when the petitioner files a Petition for Probate (Form DE-111 in California) with the county specific court in which the deceased resided before death. In Los Angeles County, the Probate Court is located at the Superior Court on N Hill St. in Downtown Los Angeles.
There is a will, is probate required?
Even if the decedent left a will, probate is required in order to validate the will. In order to be valid, the will must meet all of the criteria required by the state. For example, the will may be required to be written, witnessed, and/or notarized. The criteria changes from state to state.
Why would I need a real estate agent that specializes in probate?
Many real estate agents are very experienced at selling homes. However, a certified specialist in probate also knows the probate process and can help you and your attorney stay on track and problem solve for probate specific issues. Your certified probate specialist will also have other vendors to connect you to in order to accomplish many other tasks associated with cleaning and preparing real estate for sale.
What is the difference between Limited and Full Authority? Or, does the court need to confirm the sale of probate property?
When petitioning the court for probate, the Personal Representative has the choice between asking for Full or Limited Authority. Under Full Authority, the Personal Representative retains more power throughout the probate process resulting in a shorter probate period. Conversely, under Limited Authority, the court retains important powers which elongates the process as the Personal Representative needs to return to court for decisions and confirmations.
How can I avoid probate?
Since probate can be expensive, it is advisable to try to avoid probate. However, probate is best avoided by creating an estate plan using a trust to manage and administer the estate after death. Assets need to be re-titled into the trust in order to fund the trust. There are also some exceptions to probate based on how title is held at death. For example, property held in certain forms, such as Joint Tenancy or Community Property with Right of Survivorship, avoid probate.
Are there helpful links to the court system in LA County?
https://selfhelp.lacourt.org/search-results/C15/Topic159
https://www.lacourt.org/selfhelp/resourcesandassistance/SH_RA001.aspx
Is probate the same in every state?
Probate laws differ from state to state. Each sate has adopted their own specific probate process and it is important to be familiar with the rules in the jurisdiction where the deceased resided before death. While the laws may be similar, states may differ on certain aspects of the process.
How long does probate take?
The entire probate process can take 6-18 months. The actual time depends on the complexity of the estate, the type of assets and debts in the estate, and whether or not the Personal Representative has “Full Authority” or “Limited Authority.” Having a good team of advisors to help you through the process can make the process more efficient.
Who can help me navigate through the probate process?
Many people facing probate have never been through the process before. It is important to put a trustworthy team together to help you through this process. A good attorney is key to making the legal process more “user friendly.” If you plan on selling real estate in order to settle the debts of the estate or in order to distribute estate assets, you should hire a real estate agent that is certified in the probate process in order to adhere to the probate rules and to communicate with the necessary team members. Further, your certified probate agent can connect you with many other venders that you may need such as: cleaning crews, clutter removal, estate sales, repairmen, storage and movers, etc.
What else can an agent that is certified as a probate specialist add to the process?
Selling real estate during the probate process can trigger many associated issues that specialists will be familiar and comfortable in solving. Probate specialists are also more in tune with the complicated issues involved with multiple heirs or beneficiaries and working towards mutually acceptable solutions.
How expensive is probate?
In California, the attorney and the Personal Representative must be paid from the net assets of the estate. The formula for such fees is based on the size of the estate and each is paid the same amount. Additionally, you many incur costs to clean and prepare real estate for sale. Many times, it makes sense to spend money, if available, to make some repairs and/or improvements in order to maximize the net proceeds on the sale of property.
Are there other exceptions to probate?
Additionally, there are petitions that can be filed if the estate property is below certain thresholds in order to avoid the full probate process. And, there are also petitions for special circumstances such as spousal rights or the Heggstad Petition when property has been moved outside of their living trust in order to refinance but, in error, not properly put back into the trust before death.
Are there helpful links to the court system in OC County?
https://www.occourts.org/divisions/probate
Disclaimer: The information provided here is for preliminary consideration and is not meant to be legal advice. It is important to confer with your attorney before making final decisions.
Probate and Estate Sales 