Frequently Asked Questions:  Probate

 
WHAT IS PROBATE?
Probate is the court supervised process in which title to assets and property is transferred from the individual who has died to that individual's beneficiaries who are either identified in the will or in the law of intestate succession (the law which governs what happens if a person dies without a will).
 

DOES PROBATE TAKE LONG?
Yes. Typically, a probate proceeding may take six to eight months to complete. If there are disputes between persons claiming the estate or other complications, the probate process may take longer.
 

IS PROBATE EXPENSIVE?
It can be. In addition to the normal court cost, the executor's fee and the probate attorney's fee are set in the Probate Code as a certain percentage of the value of the Estate based on a sliding scale.
 

ARE THERE ADVANTAGES TO PROBATE?
Yes. If there is a dispute about the distribution of the decedent's property or other disputes between heirs or persons claiming the estate, the probate court can resolve the dispute in an expeditious matter in accordance with well-defined rules. Further, the decedent's creditors have a fixed period in which to present their claims to the court. If they fail to do so, their claims are forever barred. Finally, during the probate process, all the decedent's affairs are settled, all taxes paid, all liens cleared, and all allowed debts paid, so that the beneficiaries receive the decedent's property free and clear.
 

ARE THERE DISADVANTAGES TO PROBATE?
Yes. The major disadvantages to probate are (1) the length of time involved and (2) the expense of the process. Another disadvantage of the probate process is that a probate is part of the public record. Anyone can find out the decedent's assets, who the heirs are, what gifts were left to whom, and what debts, if any, the decedent had.
 

ARE THERE ALTERNATIVES TO PROBATE?
Yes. One alternative to the probate process is a revocable trust ("living trust"). First, a revocable trust eliminates the lengthy time required to distribute the decedent's estate. Rather than requiring six to eight months to transfer the decedent's assets and property, with a revocable trust, distribution can be immediate. Second, a revocable trust can be substantially less expensive than the probate process. Third, a revocable trust affords privacy for individuals. Inasmuch as a revocable trust is a private document, it is not part of the public record, and the nature and extent of the decedent's estate, as well as the distribution scheme, is known only to the decedent, his or her attorney, and ultimately to the beneficiaries and the successor trustee.