Probate

From their Oakland law offices, the estate planning attorneys at the Campbell Law Offices provide legal counsel and representation to people involved in the probate process throughout the Bay Area in Northern California.

What is Probate?

Probate, from the Latin word probatus meaning "to prove," is the court-supervised process of proving the last will and testament of a deceased person, giving effect to the provisions of that will, and otherwise distributing the person's estate according to the terms of the will and any testamentary trusts and/or the state law of intestate succession.  Probate protects the instructions of the deceased, confirms the executor as the personal representative of the estate, protects the interests of family members who may have claims against the estate, and protects the executor against claims and lawsuits.

How Does Probate Work?

The probate process begins by filing a petition with the court for an order which will:

• determine the date and place of the decedent's death
• appoint a personal representative of the estate
• order probate of the decedent's will

A hearing on the petition is normally scheduled about thirty days after the petition is filed.  This hearing may involve the examination of documents and testimony of witnesses, depending upon the facts of the case and whether there any challenges to the personal representative or the will itself. 

Once the will is admitted to probate, it has been "proven" and cannot be attacked except in limited circumstances.  At this point, everyone can rely on the authenticity of the will, and the personal representative can begin the process of administering the estate.  This includes an inventory and appraisal of the property to be administered, which may take up to four months or longer. 

At the same, notice is given to creditors about the administration of the estate.  This notice may be given four months or more from the start of the process, and the notice itself provides the creditors with four months (or longer in some cases) within which to press a claim against the estate.  As you can see, the notice and claims period alone can stretch out the probate process to eight months or more, even without any litigated matters or disputes.

The administration of the estate may include selling property as well as borrowing or encumbering property, or even abandoning property.  These matters are left to the discretion of the personal representative, who has a fiduciary duty to act with ordinary care and diligence in the best interests of the estate.  If the decedent left a business, probate may involve winding up and selling the business or continuing its operation.  Any debts of the estate are also paid during this process.

Once all of the assets have been marshaled and appraised, and all debts and taxes of the estate have been paid, the personal representative petitions the court for a preliminary or final distribution of the estate to the persons entitled to it via will or intestate succession.

Challenges can occur at any time during this process, from the appointment of the personal representative to the final distribution of the estate.  See our page on Probate Litigation for a description of the types of challenges which can arise during the administration of an estate.

The attorneys at the Campbell Law Offices are well-versed in California probate law and are able to guide you through the process, from the preparation of the first Petition to Admit a Will to Probate through the marshaling of assets, notice to creditors, and eventual final distribution and discharge.  For advice and representation regarding the probate of an estate, contact the Campbell Law Offices to schedule a consultation.