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What is Probate?

Probate is the procedure by which assets (personal property and real property) owned by a dead person are transferred to the appropriate living people by means of Order by the Court.

During the probate process, which in California takes a minimum of nine months to complete, a Petition for Probate is filed alleging certain statistical information regarding the decedent (the person who died leaving property in his or her name), the nature of the assets which are subject to the probate proceeding, the people who have an interest or potential rights to the property, and other relevant information. Once the personal representative is appointed, the assets belonging to the decedent which are subject to probate must be inventoried and appraised. In addition, creditors of the decedent must be given notice, and the period for making claims (4 months) must expire. After all the procedures are completed, the probate can be closed and the court can make orders to distribute the property to the appropriate people – those named in the decedent's will or the heirs at law.

Many people are under the misconception that Probate can be avoided by having a will. This is not the case. Having a will can eliminate some issues during probate, but whether or not there must be a probate of a decedent's estate is related to other issues.

When can probate be avoided?

When there is a living trust (aka Inter vivos Trust) and the decedents assets are properly funded into the trust

When there is property totaling less than $150,000.00 subject to probate

When there is a non-probate transfer procedure available for the type of property needing to be transferred

When the transfer is between spouses

When the property is held in joint tenancy

When the property has a beneficiary designation (e.g. life insurance, pay-on-death accounts)