What Does Probate Mean?

Probate is originally a Latin term which means “to prove,” and what that essentially means in a practical sense is that it is the court-supervised administration of somebody’s estate after they die.

How is a Will Probated?

A will is just a piece of paper that states where the person would want their assets to go when they die. It would typically state that they leave everything to their spouse, and if their spouse was not alive then they would leave it to their children, their favorite charity, or whoever they liked. The will is just a piece of paper and it does not own anything, so it is not like a corporation or a partnership, and it is not a legal entity of any kind.

The problem with a will is that although it very effectively expresses the person’s wishes regarding where they want their possessions to go when they die, there is no mechanism for making that happen, so the deceased person’s name would still be on the title to their house, their bank accounts, stock portfolio, other investments, and things like that. The will would have to be submitted to the probate court in order to actually transfer the assets to the beneficiaries of the will, which is a process called probating the will.

The judge will make sure that the will presented to the court really is the last valid will that the person signed and that it is correct in all respects. The court will then appoint somebody as the executor who is responsible for carrying out the decedent’s wishes under the will. The whole point of the probate case is to eventually change the title from the deceased person to the heirs.

Does Probate mean the actual process of transferring inheritance?

Yes, that is correct, but the process is very complicated because the deceased cannot sign anything anymore, so the court has to be very careful about making sure the right person is in charge.

Why is the Probate Necessary?

Probate is necessary because without it, if all the decedent left was a will, or even worse if there was no will at all, then the title of the deceased’s assets would not be able to pass to the children and they would not be able to inherit anything, unless the deceased had done something else as far as estate planning.

Would Probate Still Be Needed If There Is Already A Will?

Yes, unless everything is held in assets that are specifically exempt from probate, which is very rarely the case. Usually, people have a home or bank accounts that need to be probated. If someone owned a home with the deed in their name, and that deed was recorded at the County Recorder’s Office at the county where they lived or whatever county the property is in, then the recorder’s office would not change the deed based on somebody showing up at the clerk’s window with a will.

As I’ve said, the will is just a piece of paper, so the recorder’s office would require some sort of a court order directing them to record a document that changes the title to the property, and that order would be the end result of a probate case.

Does All the Deceased’s Property Have To Go Through Probate?

No, not all of the property needs to be probated. Assets that are specifically excluded from probate is anything that has a beneficiary designation on it, like a life insurance policy, a retirement plan such as an IRA or 401K plan, an annuity that designates a beneficiary, or any transfer on death (TOD) designations on bank accounts or stock portfolios (also known as POD – Payable On Death accounts).

Any jointly owned property is also exempted from probate, which does not necessarily mean it is the best way to transfer assets to the heirs. Probate would apply to solely owned real estate, large bank accounts, CDs (Certificates of Deposit), stock portfolios and business interests if the person owned a business of some sort, stock, or anything like that.

Can someone avoid probate of their estate?

Yes, and that is the main aspect of my practice, because most people do not want to go through this when they learn what probate is all about. They do not want their family to go through this because basically, by relying on a will (or worse yet, by not even doing a will), the person is setting up their family for a lawsuit, which is silly.

Trusts are commonly used to avoid a probate in California. A trust works beautifully to avoid a probate in most cases by changing the title of the assets ahead of time while the person is alive and that is why it is called a living trust, so that the title to the home, the business, the investments, etc., is held by the trust. Whoever is in charge of the trust (called the “Trustee”) legally owns the assets and does not have to go to court to petition the court to change the title, which is the whole purpose of the probate. A trust avoids the probate altogether and it is a very useful tool.