Wills And Probate Court

I am not a lawyer, I am a Judgment and Collection Agency Broker. This article is my opinion, based on my experience in California, and laws vary in each state. If you ever need legal advice or a strategy to use, please contact a lawyer.

Probate is a court hearing and a process, to verify and oversee the ownership transition of a deceased's possessions.

Many people with assets think that if they have completed a will, when they die, everything automatically goes to their heirs as they specified. If the value of their estate is small, this could happen.

When the value of an estate is substantial, probate court is often involved, unless the deceased had their assets in a living trust (or perhaps another kind of trust).

A correctly formed living trust may bypass probate court, because trusts prove the ownership titles of its listed assets, so usually no probate court decision is required.

People who die with their assets in a correctly formed living trust, can keep their estate out of probate court and the public's eye. Their heirs can inherit assets without public disclosure of who got what.

When someone owning assets (not in a trust) dies, with or without a valid will, their assets usually must go through probate court before anything is passed on to the intended beneficiaries.

Just because a will says Bob gets the house and Jenny gets the Mercedes, does not mean that the day after dad dies, Bob and Jenny immediately and automatically get the possessions listed in the will.

First, it must be proven in probate court, that the property dad left his kids in the will was owned by dad free and clear. The executor named in the will, administers the estate though probate court and beyond, until all assets, liabilities, and considerations have been taken care of.

If the executor named in the will is not specified or is unavailable, the probate court will appoint one. The probate court verifies that the known creditors have at least a chance to be paid, and that the dead person actually owned the assets named in the will. Finally, the assets are dispersed to the beneficiaries.

Probate court records are part of the public record. Anyone can go to a court and view probate records for any dead person, including celebrities.

Even when the decedent's assets are small, sometimes probate proceedings occur when there is a dispute over something with little obvious value. Examples might be sentimental items, ashes of the deceased, how a retirement account should be split, etc.

Not every probate case involves significant assets. However, a judgment creditor might do well to quickly determine the value of the estate. The creditor should decide if there might be sufficient assets to at least partially pay the judgment. If there are, then a creditor's claim should be filed immediately. (The executor often has four months to allow or deny the claim.)

If there seems to be sufficient assets to pay your claim, ask the representative or executor to do so without delay. The reason to act quickly is because assets can disappear with family members, who have no interest in paying a creditor of the decedent.

As a creditor of the decedent, it is your right to request a listing of the estate's assets and liabilities, either from the court (if it was already filed there) or the attorney of the personal representative or executor if it was not.

If your creditor's claim is denied without a good cause, you can start an adversarial action in probate court. You should know what you are doing if you represent yourself. Most judges in the probate courts have very little patience with non-related self-represented parties that do not know what they are doing.

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