Probate Basics

Losing a loved one is one of the hardest things someone can experience in life. However, on top of that grief, someone needs to be responsible for the belongings/assets that are left behind. This process is difficult, even if that loved one created a legal and updated Estate Plan/Trust giving clear instructions on how their estate should be distributed.  

Probate, in simple terms, is when those instructions to distribute an estate do not exist or were done outside of a legal Estate Plan/Trust (such as when someone only has a Will).  In these cases, the Court will need to be involved – this is the Probate Process. If the court assigns you as the person responsible for the estate/belongings, you will be called the Executor (a Will assigns) or the Administrator (no Will, the court assigns). As a new Executor/Administrator, the probate process is something no one is trained for. It’s overwhelming. Some say “it’s easier to die than to be an executor of a Will.” Probate is a common occurrence many people have to face.  In the fiscal year of 2018-2019 alone, there were 49,221 probate cases filed in California. See below, for the Probate Basics:

What is Probate: 

  • Probate is the process by which a court legally administers/distributes the estate (the assets/belongings) of the decedent (person that has passed).

Who does Probate impact: 

  • The decedent’s family/loved ones
  • The decedent’s legacy

When is Probate needed (in general) :  

  • If a person dies without a Will 
  • If a person leaves a Will (but not a Trust)
  • If there is a Trust with complications/clarification issues related to assets not being placed in the Trust
San Diego Court House
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When is Probate not needed: 

  • Estate Plan/Trust is clear and updated 
  • Life insurance policy proceeds
  • Joint owned property (if titled with rights of survivorship)
  • Accounts designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
  • Certain retirement accounts.
  • Personal property valued less than $150,000
  • Real Estate valued less than $150,000  

Why you want to avoid Probate:    

  • You lose control
  • It’s public 
  • Stressful/Overwhelming 
  • Takes time 
  • Expensive 
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