What is Probate
Probate is the legal process for the transfer of assets-houses, cars, stocks, bonds, boats, etc from the deceased person name to his or her estate so they can be sold or distributed to the heirs.
a).- Probate is a process and takes place in the county of the decedent’s residence.
b).- probate sees the settlement of an estate.
c).- Probate will validate the terms of a will, if there is one and pays to legitimate creditors and distributes remaining assets.
II.- Probate files are public records
III.-Who are the key players?
a).- Personal Representative is the person that oversees the liquidation of the Estate.
b).- Probate Clerk is the person that process the paperwork at the courthouse.
c).- Probate Attorney will files the legal documentation and represents the Estate.
d).- Heirs are the decedent’s children
IV.- How does a probate start?
a).- Someone has to die
b).- Is there a will? and if there is one will be tested.
When There is a Will then is going to be Tested and an Executor or Executrix will be designated to handle the Estate
When There is No Will means that decedent dies Intestate and an Administrator will be designated to handle the Estate.
If the assets not claimed within specific time period the State will get them.
If there is a Will: It directs disposition of the estate and settlement of legal affairs. Designates Executor, Designates heirs, after that the Executor will initiate probate.
Estate Executor has specific duties to fulfill.
If there is No Will: The court appoints an administrator whom initiates the Probate and the court oversees the liquidation of the Estate.
Attorney: Works for the Estate, sometimes required by law and gets paid for his/her services an amount often set by state law and the statutory limits the pay.
Personal Representative: is named to oversee the estate of the deceased, performs an inventory of assets, the assets are all items that have value: the real estate, the cars and everything in residence of the deceased and anywhere else, including furniture, jewelry, appliances and collectibles. Also makes an accounting of all debts and bills, liabilities include all debts, funeral expenses, taxes and any unpaid bills
The personal representative often sell assets to pay all debts, and gives the remainder to the heirs (named in the Will or by law if no Law)
V.- Special types of Probate
a).- Conservatorship The conservator has the power to sell the property to pay the assisted home services for incapable adults.
b).- Guardianship is appointed for the underage, they could sell property to pay the under aged expenses.
c).- Trust Probate A trust has to be fully funded with NO Assets Inside.
What courthouses have probate? Superior Court
a).- How are probate Files Organized? By name and case number
b).- A Probate file is held in the county where the decedent lived.
The Will is the document stating how the decedent wants the real and personal property distributed. It also identifies the decedent’s choice for a personal representative. It also names a second person who can take the place of the original choice for personal representative if he/she is unable or unwilling to serve in this position and also includes a list of all the heirs and their addresses.
Order For Probate is the court’s response to the Petition for Probate.
Letters Testamentary also know as Letters of Administration grant the Personal Representative the extent of their power to sell.
Inventory and Appraisement This lists all of the estate’s real and personal property that requires a signature and an appraised value.
How much authority does the personal representative have? Full, Limited, Bonded, Not Bonded.
The Will designates how many heirs are there and who are they?
Intestate refers to when a person dies without a legal Will. The court appoints an administrator for the case, usually a blood relative, if relative declined, the court will appoint someone else. The court often limits the authority of the personal representative because they were not originally named in a Will.
The court will often ask them to post a bond so that they have a vested interest in the estate. Must seek court approval when they sell assets in the estate. If there is a partial authority, what has to be approved will be listed.
Key Differences in California Probates Probateis a states right issue. All probates are handled at the county level. If a person dies without a will, the court appoints a Probate Inheritance Referee in addition to the administrator.
The Probate Inheritance Referee evaluates the real and personal property in the estate. The court uses the appraisal to set the minimum bid on the real property and a value for personal property items. The court requires that the minimum bid for the property be 905 of its value.
To sell the property, once an offer has been accepted by the personal representative, there must be a petition to the court for Confirmation of Sale of Real Property.
The offer must include a certified check for 10% of the price. About two weeks after the offer has been submitted to the court for the Confirmation of Sale of the Property, there will be a meeting in open court before the judge. The judge will then hold an auction for the property that has been petitioned to the court to purchase.
Anyone can bid; the formula for overbidding is as follow: The first bid must be 5% over the Petition For Sale price plus $ 500. All bidders must have a certified check in the amount of 10% of the sale price at the time of bidding or they are not considered valid bidders.
After receiving the first overbid, it is up to the judge to decide in what increments the second bid must be. The highest bidder wins the auction.
Traditional ways that is bought and sold
Probate property sold at a private sale
a).- Handled by an attorney b).- Requests sealed bids from potential buyers c).- Attorney opens the bids at a specified time and the highest bid wins the property.
Probate property sold at a public auction
a).- A set date and time for auction b).- Bids are oral rather than sealed c).- Highest bid wins the property
Probate property sold a a private auction
a).- An auction company notifies their customers regarding properties coming up for auction. b).- Bids are oral and the highest bid wins the property.
Probate property sold from Trust Departments
a).- Trust department will act as the personal representative and sell the property directly.
Probate Property sold by a Real Estate Agent
a).- The personal representative chooses an agent to list and sell the property.