Probate is the court-supervised process developed under California law which goal is to transfer your assets at your death to the beneficiaries set forth in your will, and in the manner prescribed by your will. It also provides for a fairly quick determination of valid claims of any creditors who have claims against your assets at your death. At the beginning of a probate administration, a petition is filed with the court, usually by the person or institution named in your will as executor. After notice is given, and a hearing is held, your will is admitted to probate and an executor is appointed. If you die "intestate" (that is, without a will), your estate is still subject to probate court administration and an administrator is appointed by the court to handle your estate.
If assets in your name alone at your death do not include real estate and have a total value of less than $100,000, then a statutory procedure is followed to transfer those assets to your beneficiaries. These assets are nonetheless subject to debts and expenses incurred, without a formal court-supervised probate administration.
A probate has advantages and disadvantages. The probate court is used to resolving disputes about the distribution of your assets in a rather speedy fashion and under defined rules. In addition, you are assured the actions and accountings of your executor will be reviewed and approved by the probate court.
Disadvantages of a probate include its public nature; your estate plan and the value of your assets become a public record. Also, because lawyer's fees and executor's commissions are based on a statutory fee schedule, the expenses may be greater than the expenses incurred by a comparable estate managed and distributed under a living trust. Time can also be a factor; often distributions can be made under a living trust more quickly than in a probate proceeding.
