What Is Probate? In Plain Words

The words, in plain words

The California Courts guides use these words with these meanings:

• Decedent. The person who died.
• Estate. The property the person owned when they died. The California Courts self-help guide says: “All of the property legally owned by the deceased person is called the person’s ‘estate.’”
• Will. In the California Courts guide’s words, a legal paper that lists a person’s wishes about what will happen to his or her property after death.
• Personal representative. The administrator or executor that the court appoints to manage the estate.
• Executor. A person named in a will and appointed by the court to carry out the dead person’s wishes. The executor is also called the personal representative of the estate.
• Administrator. The person the court appoints to manage the estate of a person who dies without a will. The California Courts guide says the administrator is usually the spouse, domestic partner, or a close relative. The administrator is also called the personal representative of the estate.
• Beneficiary. A person who inherits when there is a will.
• Heir. A person who inherits when there is no will.
• Testate. When someone dies leaving a will.
• Intestate. When someone dies without leaving a will.
• Intestate succession. The California Courts self-help guide defines this as the laws that say who inherits something if the person did not have a will or trust. The California Courts guide also calls it the order of who inherits property when someone dies without a will.
• Trust. An arrangement where property is given to someone to be held for the benefit of another person. A living trust is a trust set up during the life of a person to distribute money or property to another person or organization.
• Personal property. Things like cash, stocks, jewelry, clothing, furniture, or cars.
• Real property. Buildings and land.

Does every estate go through probate?

No. The California Courts self-help guide says that depending on the amount and type of property the deceased person owned, you may or may not need to go to court to transfer or inherit the property. If you need to go to court, this is commonly called “going through probate.” The same guide says a person’s estate may need to go through probate even if they had a will.

The same guide says the first job is to figure out what process you can use to transfer the property: you first need to organize all the information about what the person owns and owes, and then consider the options.

The main steps, in the general order the California guide gives them

California example. The steps below are the order in the California Courts self-help guide, “Guide to property after someone dies.” Other states run their own courts and their own steps.

• 1. Organize what the person owns and owes. The guide says that to figure out what process you can use, you first organize all the information about what the person owns and owes, and then consider the options.
• 2. If there is an original will, deliver it to the court. In California, the self-help guide says: if you find an original will, you must deliver it to the court. Delivering a will to the court is called “lodging the will.” The guide also says you must send a copy of the will to the executor named in the will, and if you cannot find the executor, then send it to a person named in the will as a beneficiary.
• 3. Open probate: ask a judge to appoint a personal representative. In California, the self-help guide says: to start a probate case (called opening probate), you go to court and ask a judge to appoint a personal representative.
• 4. The personal representative collects the property, pays the bills, and distributes what is left. In California, the self-help guide says the personal representative is the person responsible for representing the estate in the probate process, and that the personal representative collects all the property of the person that died, pays their bills, and then distributes any remaining property to the people with a legal right to receive the property (called heirs or beneficiaries).

Who does what

• The court and the judge. In California, the self-help guide says you go to court and ask a judge to appoint a personal representative, and that a judge will need to decide which person has priority when the law gives preference to one person over another. The same guide notes that the probate court also handles other types of cases, like guardianships and conservatorships.
• The personal representative. The person responsible for representing the estate in the probate process: collecting the property, paying the bills, and distributing what remains, as described above.
• The executor. If the person had a will or trust, the person listed as in charge (often called an executor) will generally handle any probate, the California guide says. If they cannot or do not want to, then it will often be a relative.
• When there is no will. The California guide says that if the person did not have a will or trust, often a close relative will handle any probate. If the person was married when they died, their spouse is often the person. Or, if they have adult children, then an adult child. The guide says relatives should generally talk to each other to decide who and how decisions will be made for the estate.
• Heirs and beneficiaries. The people with a legal right to receive the property. The California guide calls them heirs or beneficiaries.

In California: who a judge appoints first

This is California only, as the California Courts self-help guide states it. If the transfer of property needs to go through probate, a judge will appoint someone as a personal representative of the estate. The law gives preference (also called priority) to who this will be. This is often the person named in the will. If the person named in the will cannot act or there is no will, then there is an order of priority for who may be appointed a personal representative. In the guide’s order, that is: any surviving spouse or domestic partner, then a child, then a grandchild, then a parent, and then a sibling. A judge will need to decide which person has priority.

The California guide also says two or more people can represent an estate together, but they must always act together.

Property the California guides treat as outside the probate count

This is California only, as the California Courts guide “Transferring property when someone dies” states it. That guide tells you how to figure the value of an estate for a simpler transfer process, and it lists property you do not include in that value:

• Property held in trust, including a living trust.
• Real or personal property that the person who died owned with someone else (joint tenancy).
• Property that passed directly to the surviving spouse.
• Life insurance, death benefits, or other assets not subject to probate that pass directly to the beneficiaries.

The same guide also lists cars, and real property outside of California, as not included in that value count. Those are items on the guide’s counting list for that one California process; this page does not present them as a national rule about what passes outside probate.

Separately, the California Courts self-help guide notes that even if someone was not named in a will, the person who died might have named them as a beneficiary, for example on a retirement or bank account, and that these people may also have decisions to make or steps to take to claim the property.

Simpler ways than full probate, as California frames them

This is California only, as the California Courts self-help guide states it. California law lets you use simpler “summary succession” procedures if the property is worth less than a set amount. The guide calls these faster, easier legal processes to transfer a person’s property after they die, without going through the full probate court process. The guide says you may be able to use summary succession if the property is under a certain value, the person died on a certain date, and a specific law (a Probate Code section) applies to the property. The guide says these amounts are updated every 3 years. The dollar amounts themselves are not printed on this page; they are in the official source at the bottom of this page.

Also California only: the older California Courts guide “Transferring property when someone dies” says that if you have the legal right to inherit personal property, like money in a bank account or stocks, you may not have to go to court, because there is a simplified process you can use to transfer the property to your name — and that this process is not for real property, like a house. The dollar limit that guide prints is not printed here, because limits change over time.

The California self-help guide says that if none of the simpler options apply to your situation, you may need to go through the formal probate process.

Costs, as California frames them

This is California only, as the California Courts self-help guide’s formal probate page states it. There will be fees to file documents with the court, to publish a notice in a newspaper, to have an appraiser such as a probate referee value property, and other expenses of administration. The fees to administer an estate are generally set by law as a percentage of the total value of the estate, and may be paid from the estate to the personal representative and, if there is one, the personal representative’s attorney. Fees are usually not paid until the end of the entire probate case. The guide also says many fees must be paid upfront by the personal representative, who is then reimbursed from the estate later; typically, these fees are paid out of the estate. No fee amounts or percentages are printed on this page.

After someone dies: the national steps USA.gov lists

USA.gov’s page “Agencies to notify when someone dies” is national, and it says: after someone dies, notify the government programs and businesses they used, cancel benefits payments, and close or transfer accounts.

• For most agencies and programs, you will need the person’s Social Security number and certified copies of their death certificate.
• Report the person’s death to banks, credit card companies, credit bureaus, and other financial organizations, and contact utilities and places where the person had memberships and subscriptions.
• USA.gov links to the Federal Trade Commission for what to do about any debts the person had.
• After a family member’s death, you may be eligible for death benefits from the government, which USA.gov says can include survivor payments, educational or housing help, military honors, and COVID-19 burial reimbursement. USA.gov offers a benefit finder tool to find benefits you might qualify for.

USA.gov does not run probate. Probate is handled under state law, in state courts — which is why the probate parts of this page are labeled with the one example state, California.