PROBATE TERMS (GLOSSARY)

Here are some important probate terms you’ll want to know:

Beneficiary: A person who inherits when there is a Will.
Custodian of the Will: The person who has the Will when the person who
wrote the Will dies.
Decedent (or deceased): The person who died.
Decedent’s estate: All the property (real or personal) that a person owned at the
time of death.
Executor: A person named in a Will and appointed by the Court to carry out the
dead person’s wishes.
Heir: A person who inherits when there is no Will.
Intestate: When someone dies without leaving a Will.
Intestate succession: The order of who inherits the property when someone
dies without a Will.
Legatees, or devisees: People who are named in a Will.
Personal property: Things like cash, stocks, jewelry, clothing, furniture, or
cars.
Personal representative (or administrator or executor): The person
responsible for overseeing the distribution of the estate.
Probate: The process of deciding where, how, and to whom to distribute the
decedent’s property.
Real property: Buildings and land.
Testate: When someone dies leaving a Will.
Trust: When one person (trustee) holds property at another person’s (settlor’s)
request for the benefit of someone else (the beneficiary).
Will: A legal paper that lists a person’s wishes about what will happen to his/her
property after death.

What is probate? Probate is when the court supervises the processes that
transfer legal title of property from the estate of the person who has died (the
"decedent") to his or her beneficiaries. Usually, you have to fill out court forms
and appear in court to:
Prove to the Court that the Will is valid (this is usually routine),
Appoint a legal representative with authority to act on behalf of the
decedent,
Identify and inventory the decedent's property, and have that property
appraised,
Pay debts and taxes, and
Distribute the remaining property according to the terms of the Will or to
the decedent's heirs.
Is probate necessary? If the person who died did not have any property to
transfer, probate is usually not necessary. The deceased person’s survivors
may decide to open a probate if there are debts owed or if there is a need to set
a deadline for creditors to file claims. When there is property to transfer, the
probate process also provides for the distribution of the estate's property to the
decedent's heirs.
Does all property go through probate when a person dies? No. The term
"probate estate" refers to any property subject to the authority of the probate
court. Assets distributed outside the probate process are part of a person's
“non-probate estate.” California has "simplified procedures" for transferring
property for estates worth under a certain amount (from $20,000 to $150,000
depending on the circumstances and the kind of property). There is also an
easy way to transfer property to a surviving spouse, property held in Joint
Tenancy or Community Property with Right of Survivorship, and life insurance
and retirement benefits. To learn more about these simplified procedures, see
the Simplified Probate Procedures section of this website.  
Should I choose the simplified procedures? Not necessarily. Talk to a
probate lawyer. There may be debts or tax claims that make probate a better
option for you. If there are a lot of issues to handle, going through probate
allows you to pay the person who deals with the creditors and taxing
authorities.  You can find a probate lawyer from the membership list of the
Silicon Valley Bar Association’s website . You can also get a referral to a lawyer
from the Santa Clara County Bar Association . Their phone number is 408-971-
6822 .
Do life insurance or retirement benefits need to go through probate? No.
The benefits can be paid directly to a named beneficiary. Money from IRAs,
Keoghs, and 401(k) accounts transfer automatically as long as the persons are
named as beneficiaries. Bank accounts that are set up as pay-on-death
accounts (PODs) or "in trust for" accounts (a "Totten Trust") with a named
beneficiary also pass to the beneficiary without probate.
Do living trusts go through probate? No. When a living trust holds title to
some of the decedent's property, that property also passes to the beneficiaries
without probate. (For more information, see the Financial and Medical Decision
Making - Living Trusts section of this website.)
How much does probate cost?The cost of probate is set by state law. When
all the costs are added up – these may include appraisal costs, executor's fees,
court filing fees and certified copies, costs for a type of insurance policy known
as a "surety bond," plus legal and accounting fees--probate can cost from 4% to
7% of the total estate value, sometimes more. If someone contests the Will,
there could be thousands of dollars of litigation costs. For more information, see
"How much do I have to pay the Personal Representative and Attorney?" in the
Closing and Distributing the Probate Estate* section of this website. *Caution:
This link takes you to another section of the website that is very complex. You
may need a lawyer to help you understand the information.  
How long does probate take? California law says the personal representative
must complete probate within one year from the date of appointment, unless
s/he files a federal estate tax. In this case, the personal representative can
have 18 months to complete probate. If probate has not been completed by that
time, the personal representative must file a status report to the court to explain
what still has to be done and how much time that will take. If the personal
representative does not report to the court, the beneficiaries can ask the court
to order him or her to file an accounting or take other actions to close probate.
The court can remove the personal representative and appoint someone else.
Sometimes there are circumstances that can make probate take longer. If there
is a Will contest (a claim filed with the court that all or part of the will is not
valid), or the size and complexity of the estate requires extra time, or it is hard
to find beneficiaries, the process can drag out. Some probate cases take years
to resolve.
Where will the probate hearing be?In California, probate hearings are in the
Probate Department of the Superior Court in the county where the decedent
lived at the time of his or her death. The Probate Department is located in
Downtown Superior Court in San Jose. (Click for directions, business hours,
etc. of Downtown Superior Court.) If you have to file a probate petition in
another state because there is real property in that state, the courts in that state
may use a different name. In New York, for example, the probate court is
known as the Surrogate Court.
Who is in charge of the probate process? If there is a Will, the person
named as executor will usually be appointed as the personal representative –
this means s/he is responsible for managing the estate and following probate
Rules of Court and procedures. The executor has no authority to act as
personal representative until s/he is appointed by the court and formal "Letters
Testamentary" are issued by the Court Clerk. If there is no Will, or if the Will
doesn’t name an executor, or the person named as executor in the Will is
unable to be executor or does not want to be executor, the probate court
appoints someone called an administrator to handle the process. The Court
usually chooses the closest living relative, or a person who will inherit some
portion of the decedent's assets. 
Who can be the personal representative? The personal representative does
not have to be a legal or financial expert. But, s/he must have reasonable
prudence and judgment and be very careful, honest, loyal, impartial and
diligent. This is called a "fiduciary duty" -- the duty to act with good faith and
honesty on behalf of someone else. The personal representative should have
good organizational skills and be able to keep track of details. It is preferable if
he or she lives nearby and is familiar with the decedent's finances. This makes
it easier to do tasks and find important records.
Who is not allowed to be the personal representative? The following people
cannot be the personal representative:
a minor,
a person subject to a conservatorship or otherwise incapable of
performing the duties of personal representative,
a surviving business partner of the decedent, if an interested person
objects (unless the Will names the partner as executor), or
a non-resident of the U.S. (unless the Will names the non-resident as
executor).
Does the Court supervise the personal representative? Not usually. But, in
some situations the Court requires the personal representative to ask the
Court’s permission to sell real estate or business interests owned by the estate.
The personal representative cannot do any of the following things without the
Court’s permission:
pay fees to himself or herself,
pay fees to his or her attorney,
make a preliminary distribution of property to beneficiaries (with a few
exceptions), or
close the estate.
For more information, see Administering the Probate Estate After Appointment.*
*Caution: This link takes you to another section of the website that is very
complex. You may need a lawyer to help you understand the information.If the
personal representative lives outside of California, the court may require that
s/he get a surety bond (an insurance policy that protects the estate
beneficiaries in the event of the personal representative's wrongful use of the
estate's property), even if the Will waives this requirement.  
What does the Personal Representative do? The Personal Representative
must:
decide if there are any probate assets;
locate the decedent's assets and manage them during the probate
process. This could take up to a year or longer and may involve deciding
whether to sell real estate or securities owned by the decedent;
receive payments due to the estate, including interest, dividends, and
other income (e.g., unpaid salary, vacation pay, and other company
benefits)
set up an estate checking account to hold money that is owed to the
decedent -- for example, paychecks or stock dividends;
figure out who is going to get what and how much under the Will. If there
is no Will, the administrator will have to look at state law (Probate code
Sections 6400 – 6414, called "intestate succession" statutes) to find out
who the decedent's heirs are and determine each heir's share of the
estate;
value or appraise the estate's assets;
give official legal notice to creditors and potential creditors of the probate
proceeding and the deadlines for creditors to file claims, according to
state law;
investigate the validity of all claims against the estate;
pay funeral bills, outstanding debts, and valid claims;
use estate funds to pay continuing expenses -- for example, mortgage
payments, utility bills and homeowner's insurance premiums;
handle day-to-day details, such as disconnecting utilities, ending leases
and credit cards, and notifying banks and government agencies -- such
as Social Security, the post office;
file tax returns and pay income and estate taxes – including a final state
and federal income tax return covering the period from the beginning of
the tax year to the date of death;
after getting the court's permission, distribute the decedent's property to
the people or organizations named in the Will, or to the decedent's heirs
if there is no Will; and
file receipts for distribution and wrap up any closing details for the estate.
If I am named as executor in a Will, do I have to serve? No. If you choose
not to serve, the Court will probably appoint the alternate executor to be the
personal representative. If there is no alternate executor, or if that person
doesn’t want to serve, the Court will appoint someone to serve. The Court
usually appoints a capable family member or an independent professional
fiduciary. If you decide to be the personal representative, you can resign at any
time. But, you may have to give an "accounting" to the Court for the time you
served.
If I serve as executor, will I get paid? Yes. In addition to your out-of-pocket
expenses to manage and settle the estate, personal representatives usually
earn a statutory fee of 2% - 4%of the probate estate. The percentage
decreases as the size of the estate increases. The Court must approve all fees
and expenses. And, in extraordinary circumstances, the Court may allow other
fees. (See "How Are Fees Determined for the Personal Representative and
Attorney" in the Closing and Distributing the Probate Estate* section of this
website.) *Caution: This link takes you to another section of the website that is
very complex. You may need a lawyer to help you understand the information.
Fees are taxable as ordinary income and must be reported on your personal
income tax return. So, if you are the personal representative and the sole
beneficiary of the estate, it usually does not make sense to take any fees. But,
the money you get as beneficiary from the estate is income tax free. Talk to a
lawyer for more information.
What happens if the personal representative fails to perform his or her
duty? The court may lower or deny compensation and can replace the
personal representative with someone else. The personal representative may
even have to pay for any damages he or she caused. A personal representative
may be held liable for:
improperly managing the assets of the estate,
failing to collect claims and money due the estate,
overpaying creditors,
selling an asset without the authority to do so, or at an inappropriate
price,
not filing tax returns on time,
distributing property to the wrong beneficiaries, or
distributing property to beneficiaries before all creditors have been paid,
etc.
Do I have to use a lawyer for the probate process? No. But, it may be a
good idea if the estate is complex. A lawyer can help you meet all deadlines
and avoid mistakes and delays. A lawyer can sometimes help avoid
disagreements among family members over minor or major issues. But the
lawyer represents the interests of the personal representative, not the
beneficiaries. You may not need a lawyer if:
you are the sole beneficiary,
the decedent's property consists of common assets (like house, bank
accounts, insurance, etc.)
the Will is simple and straightforward, and
you have access to good Self Service materials.
In most cases, the personal representative may never see the inside of a
courtroom. But, s/he will have to go to the Court Clerk's office.
What if someone objects to the Will? If someone files an objection to the
Will, or produces another Will, a "Will Contest" has begun. Will contests are not
uncommon, but few people actually win one. Still, they can cost a lot of money
and time. 
Who can contest a Will? Only a person with "standing" can contest a Will.
This means the person must have a personal financial stake in the outcome.
Examples of people with standing to contest a Will are:
a child or spouse who was cut out of the Will
a child who receives one third of the estate if a sibling receives two
thirds,
children who feel that the local charity should not get all the parent’s
assets,
anyone who was treated more favorably in an earlier Will.
Sometimes, there is a Will contest because someone wants a different person,
bank, or trust company to serve as personal representative for the estate, or as
a trustee of trusts created by the Will.
When can a Will be contested? Most challenges to Wills are by potential heirs
or beneficiaries who got little or nothing. Will contests must be filed in Probate
court within a certain number of days after receiving notice of the death, or
petition to admit the Will to probate, or issuance of Letters Testamentary to a
personal representative. Examples of reasons to challenge a Will are:
there is a later Will which, if valid, would replace the earlier Will;
the Will was made at a time the decedent was not mentally competent to
make a Will;
the Will was the result of fraud, mistake or "undue influence";
the Will was not properly "executed" (signed by the decedent);
the so-called Will is actually a forgery;
for some other reason (such as a pre-existing contract) the Will is invalid.
If there is a Will contest, you should hire an experienced lawyer. The probate
court may invalidate all of the Will or only the challenged portion. If the entire
Will is found invalid, the proceeds will probably be distributed according to the
state laws of intestacy, unless there is a prior revoked Will that is revived and
admitted to probate.  
What if there is no Will? If a person dies without a Will (known as dying
"intestate"), the probate court appoints a personal representative (known as an
"administrator"). The major difference between dying testate and dying intestate
is that an intestate estate is distributed according to state law (known as
"intestate succession"). A testate estate is distributed according to the
instructions left by the decedent in his or her Will.
What happens if we cannot find a Will? If a Will is lost or can’t be found, the
specific facts and circumstances and state law will determine what happens.
For instance, if the Will is missing because the decedent intentionally revoked
it, an earlier Will or the laws on intestate succession would determine who gets
the decedent's estate. Or, if a Will is missing because it was stored in a bank
vault destroyed in a fire, the probate court may accept a photocopy of the Will
(or the lawyer's draft or computer file), if there is evidence that the decedent
properly signed the original.
What if the decedent owned land in more than one state? The probate laws
of the state in which the decedent was a permanent resident determine who will
get the decedent's personal property (wherever it was located) and the
decedent's real property located within the state. This is why probate is almost
always filed in the decedent's home state. If the decedent owned real property
in another state, that state's laws determine how the real property will be
distributed. There will be probate in each state where there is real property, in
addition to the home state. Each state has its own method for distributing the
decedent's real property. Even if there is a Will, the Will is first admitted to
probate in the home state, then it must be submitted to probate in each state in
which the decedent owned real property. The extra probate procedure is called
"ancillary probate." Some states insist upon the appointment of a personal
representative who is a local resident to administer the property in that state.  
How do creditors get paid? Part of the probate process is to notify creditors of
the death. Notice requirements vary. In some cases, you must provide direct
notice. In others, you must publish a notice in a newspaper in the city where the
decedent lived. Creditors must file a claim with the court for the amounts due
within a fixed period of time. If the executor approves the claim, the bill is paid
out of the estate. If the executor rejects the claim, the creditor must sue for
payment. If there is not enough money to pay all debts, state law determines
who gets paid first. The personal representative most likely will sell property to
pay approved creditor claims. Remaining claims are paid on a pro-rata basis.
(For more information, see "Creditor Claims" in the "Administering the Probate
Estate After Appointment”* section of this website.) *Caution: This link takes
you to another section of the website that is very complex. You may need a
lawyer to help you understand the information.
If I am a beneficiary and the estate does not have enough money, do I
have to pay creditors out of my own pocket? Generally, no. The law says
you cannot be made responsible for others’ general debts without your consent.
Unless the decedent gave away his or her assets to someone shortly before
dying, or otherwise acted in concert with them to defraud the creditors, the
beneficiaries should not have to pay the creditors just because they are
beneficiaries. There may be nothing left in the estate for the beneficiaries after
paying the creditors. But, the beneficiaries will not owe the creditors money.
Still, if the children or beneficiaries took property or benefits from the decedent
or the estate, or assumed liability for care given the decedent, or guaranteed
payment, they can be liable for some or all of the decedent's debts separately.
How are taxes handled in probate? For federal and state tax purposes, death
means two things:
It marks the date of the close of the decedent's last tax year for filing an
income tax return, and
It establishes a new, separate entity for tax purposes, the "estate."
For federal taxes, you may have to fill out and file one or more of the following
forms. (It depends on the decedent's income, the size of the estate, and the
income of the estate):
 Final Form 1040 Federal Income Tax return (the decedent's personal
income tax return)
Form 1041 Federal Fiduciary Income Tax returns for the estate
Form 709 Federal Gift Tax return(s)
Form 706 Federal Estate Tax return
For California taxes, the executor must file any needed state income tax return,
state fiduciary income tax returns during the probate period, estate tax and gift
tax returns. There may be other taxes, too, like local real estate and personal
property taxes, business taxes, and any special state taxes. The executor must
also check for taxes owed for years prior to the decedent's death. (For more
information, see "Taxes" in the Administering the Probate Estate after
Appointment* section of this website.) *Caution: This link takes you to another
section of the website that is very complex. You may need a lawyer to help you
understand the information.
Am I responsible for paying the rest of my deceased spouse’s bill?
Maybe. If you and your spouse shared the same bank account and credit cards,
checks, etc., then you may have to pay the bill. If the credit cards or accounts
were opened with only your spouse’s information as reference, then you may
not be liable. Creditors usually collect their debts from the estate before the
remainder is divided among the heirs. Each case depends on the
circumstances. Talk to an experienced probate lawyer. You can find a probate
lawyer from the membership list of the Silicon Valley Bar Association’s website .
You can get a referral to a lawyer from the Santa Clara County Bar
Association . Their phone number is 408-971-6822 .
How can I find out if there was a Will? First, check with the Probate Court in
the county of the state where the decedent lived. If the Will was filed, it will likely
be available to the public for viewing. And, you can purchase a copy. Or, you
can hire a local lawyer or legal service bureau to do a search and get a copy for
you. But many people, even with substantial assets, die without a Will. And, if
the decedent held all property through a living trust or a joint ownership
arrangement, there may be no need to probate the Will.
What if someone dies and I have the Will in my possession? The law says
you must "deposit" the Will with the superior court in the county where the
decedent lived, even if there will be no probate. There is no fee involved. But,
the court does not accept Wills for persons who are still living!
As an heir, how do I stay informed of what is happening in the probate
case? You will automatically get notice of certain petitions filed, including the
petition for appointment of the personal representative and the final petition
when it is time for the estate to be closed and distributed. If the personal
representative wants to sell real property, you should also get a Notice of
Proposed Action. If you want to get copies of everything filed in the probate
court concerning the estate, file a Request for Special Notice. There is no fee to
file this document. You can contact the personal representative directly if you
have any questions. You can also contact the attorney for the estate.But, keep
in mind the attorney works for the personal representative and not the heirs. If
you have concerns about the way the personal representative is handling the
estate, talk to a lawyer.
What are the steps in the process to probate a decedent's estate? Most
cases follow these steps:
Step In most cases, the person requesting appointment as personal
1 representative (executor or administrator) hires an experienced probate
lawyer to prepare and file a Petition for Probate. In some cases, the person
requesting appointment will handle the probate without hiring a lawyer, as
discussed above.
Step The probate lawyer, or the petitioner without a lawyer, arranges to mail
2 notice to everyone named in the decedent’s Will (when there is a Will) and
all his/her legal heirs about the death and the probate hearing. The notice
must also be published in the newspaper where the decedent lived to let
creditors know about the hearing. Notice gives everyone notified an
opportunity to object to admitting the Will and to the appointment of the
personal representative.
Step The hearing usually takes place several weeks after the matter is filed. The
3 purpose of the hearing is to determine the validity of the Will and to appoint
the personal representative. Sometimes, the Court will need the people
who witnessed the decedent's signature on the Will to sign a declaration. If
there are no objections, the court will approve the petition and appoint the
personal representative.
Step The personal representative must identify, take possession of, and
4 manage the probate assets until all debts have been paid and tax returns
filed. This process usually takes about a year. Depending on the terms of
the Will (if there is a Will), and on the amount of the decedent's debts, the
personal representative may have to sell real estate, securities or other
property. For example, if the Will makes cash gifts but the estate consists
mostly of valuable artwork, the art may have to be appraised and sold to
produce cash. Or, if there are unpaid debts, the personal representative
may have to sell some of the estate property to pay them.
Step After paying the debts and taxes, the personal representative must file a
5 report with the court. The report accounts for all income received and
payments made on behalf of the estate. The judge will then authorize the
personal representative to divide the remaining property among the people
or organizations named in the Will.
Step
The property will be transferred to its new owners.
6

See diagram of the probate process. It is a good idea to look before continuing.
There are other sections on probate administration at this website. But the
information in those sections is very complex. You may need a lawyer to help
you understand the information in the sections listed below:
Preparing the Petition for Probate
Administering the Probate Estate After Appointment
Closing and Distributing the Probate Estate
How do I find a Probate lawyer or get legal aid?You can get a referral to a
lawyer from the Local Bar Association  in Santa Clara County. Their phone
number is 408-971-6822 . You may also want to refer to our Free & Low-Cost
Legal Aid page.
More Help with Property Probate
Administering the Estate
Closing and Distributing the Estate
Preparing the Petition
Process Diagram
Referees
Simplified Procedures
Trusts
Probate Resources