Probate: An Estate Goes to Court

Probate is a court proceeding that starts after a person’s death. If the person who died had a will, then filing the will in court starts the process.

If the person who died had no will--died intestate--the process usually begins when a person who seeks to be named the administrator of the estate files the appropriate papers in probate court.

Not all the dead person’s property has to go through a probate administration. Last week, we told you about property that the will does not control. As a rule, that sort of property--life insurance, property owned in joint tenancy, pension rights, trust property--does not go through probate. You may still need assistance from a lawyer or financial professional, however, in collecting those assets and determining what should be done with them.

There is, as there always seems to be, an important legal catch: Even though certain property does not go through probate, the value of the property still counts for estate tax purposes. Estate tax applies only to estates that exceed $600,000 in value, so this legal catch may not upset most people. But if you owned your home in joint tenancy or community property, so that it transfers to your partner or spouse outside probate, the value of the house still counts when the tax man or woman comes calling.

An example might help. If the value of the property that goes through probate is $300,000 and the value of the home that passed outside probate is $400,000, for a total estate of $700,000, tax would be owed on the last $100,000, even though only $300,000 went through probate.

Probate is not necessary for estates that do not exceed $60,000 in value. The entire transfer of assets can be done by filing the appropriate affidavit in court. Naturally, there are detailed rules and requirements about completing the form correctly. If you want to try it yourself, you’ll find some help in the Nolo Press book, “How to Probate an Estate.” You can order the book from Nolo Press by calling (800) 992-6656.

You also do not need probate to transfer your assets to your surviving spouse. Generally, when a husband or wife dies without a will leaving community property to others or dies with a will leaving all property to the surviving spouse, the property can pass to the survivor and no probate administration is required.

There are some steps you should take, so you might need a lawyer’s help, or at least study Chapter 15 of the Nolo Press book. In other words, if you want to leave all your assets to your surviving spouse, you may not need a living trust to avoid probate.

One other cautionary point: Debts at the date of death are still due. They generally become an obligation of the estate if there is a probate. If there is no probate, the debts generally become an obligation of the surviving spouse.

Klein is an attorney and president of The Times Valley and Ventura County editions. Brown is professor of law emeritus at USC and chairman of the board for the National Center for Preventive Law. They cannot answer mail personally but will respond in this column to questions of general interest about law. Do not telephone. Write to Jeffrey S. Klein, The Times, 9211 Oakdale Ave. , Chatsworth, Calif. 91311.