Family Law | Probates & Estates | Wills | Injury Law

Probates and Estates

Probate is the legal proceeding which transfers assets from a decedent to his or her heirs. When a person dies, someone must act as a representative of the decedent's estate. That person is usually called an Executor or Excutrix (Executor = man, Executrix = woman). This person is responsible for finding out what the decedent owned at that the time of death (her or her assets), take control over the assets of the decedent, identify all the debts of the decedent, pay the debts with the assets (selling some assets if necessary), and then distribute the assets according to the Will of the decedent or according to the law if there is no Will.

Probates & Estate Frequently Asked Questions

Do I need to probate my spouse’s estate?
This depends a great deal on the assets and value of the decedent’s estate. It will also depend on whether or not the decedent was married at the time of his or her death, and if so, whether a community property agreement was executed prior to death. Generally speaking, if real property is involved or if the estate exceeds $60,000, the estate will have to be probated. If the decedent was married and the spouse survived the decedent and the spouse and decedent entered into a community property agreement, then it may be possible for the spouse to elect to either probate the decedent’s estate or to take the decedent’s estate under the authority granted by the community property agreement if such authority is part of the community property agreement.

What is probate?
Probate is the legal action which determines the assets of the decedent at the time of his or her death, the creditors of the decedent, payment of the decedent’s debt and distribution of the decedent’s assets to his or her heirs.

How long does it take?
The estate must remain open a minimum of 4 months but may remain open for a considerably longer period of time depending on the facts and circumstances of the estate.

What does probate cost?
This depends on the complexity of the estate and, of course, different attorneys charge different rates. Typically a probate cost will arrange from a few thousand dollars to ten thousand or more, particularly if the estate is rather complicated.

Are my assets frozen during probate?
Generally not, and it is certainly possible to make partial distributions while the probate is pending in court. The assets of the estate, whether a Will was signed by the decedent and the number of type of heirs all have an influence on whether or not partial distributions can be made during the probate process.