As a reminder my first book on California probate is available on Amazon.com or email me for a PDF copy. I don’t think I will ever get around to releasing my second book so am leaking chapters each day right here on my blog. Here’s chapter two:
Chapter 2 – The Five W’s of probate:
The Who in probate:
I guess you could say there are multiple “whos” but generally the decedent is the focus of a probate. That’s the person that has died with assets in their name alone. They should have gotten a living trust, before death, but they didn’t. The other players would be the family members and the people named in wills, trusts and other testamentary devices. The probate Court Judge is the master of the proceedings. Lastly, typically at least one attorney is involved. This attorney represents the personal representative of the estate. A quick side note: if there is more than one attorney involved in the probate case you probably have a mess or a mess is developing. As the old joke goes when there was one attorney in town he had no business… until the second attorney moved to town! Of course the reality is a good probate attorney can help protect YOU so don’t be shy about getting your own counsel even if it’s attorney number 2, 3 or more in a case.
Decedent – The person who died
Executor – Person named to administer the probate in the will
Administrator – Person named to administer the probate if not named in will
Special Administrator – Person named to act on behalf of the estate on an emergency or temporary basis
Personal Representative – Includes Executor, Administrator and Special Administrator
Judge – The probate Judge is a Superior Court Judge who is in charge of the process
File Examiner – Is typically an attorney, but sometimes a non-attorney, who works at the court and advises the Judge on each case
Lawyer – Typically the Personal Representative is represented by their own legal counsel
Court Reporter – The person who types notes of what is said in Court and does not exist in all probate court rooms.
Referee – The Probate Referee is the state appointed official who appraises assets in a probate case.
The What in probate:
I am asked this question a lot. What is probate? Or why is it necessary? Or why am I going to pay you all this money? The questions are different but get back to the same main question, what is probate? It stems from old English common law. I have seen references to the word probate as far back as the 1460’s. While I do have a lot of years in practice I was not quite working back in the 1460’s. The word means to offer or prove the validity of a will. A will being a decedent’s last wishes or instructions to happen after death. To probate the will is to probate the will and carry out the decedent’s instructions and wishes. At the simplest core the what is to clear title to a decedent’s assets but that’s really just a quick answer and only part of the process.
the official proving of a will.
“the will was in probate”
The Where in probate:
Probate takes place in the probate court. In many counties of California this is a separate court or, more aptly named, a division of the Superior Court. In larger counties there may be a dedicated court room and even a dedicated Judge. Additionally, there will be court employees who specialize in probate. In some counties this is teams of people and other counties maybe only one or two people. The court where the probate takes place is the county of residence of a decedent who died in California or the county where property is if the decedent died outside of California. There are some instances where there is an argument for two or more counties being the where and we’ll talk about that later.
The Why in probate:
The question of why probate is necessary is defined by what it is. Probate was deemed necessary, in the past, to protect a person’s wishes and make sure they were followed. The probate Judge, as the overseer of facts, monitors the proceedings to probate the decedent’s wishes and intent. Generally these wishes are demonstrated by a last will and testament or a presumed will as determined by the state. Occaisionally the Judge has to determine the decedent’s desires as expressed in trusts and beneficiary designations. In all situations the probate code plays a large part.
The How in probate:
This book is about the how. It’s about how your experience with probate can be as efficient as possible. It’s how you can tell people that probate isn’t as bad as you had heard!