Q: Dad died two years ago. Mom just died. Her will left the house to me. Why do I need to go to court?
A: Unfortunately, things are never quite as simple as they seem. If you try to sell the house, the records at the County Recorder’s office don’t show you as the owner. Even if a potential buyer saw the will, how would the buyer know if it was real or a forgery? Did your mother change her mind and write another Will giving the house to your brother and sister? Finally, what about that $30,000.00 credit card bill Mom ran up when she took her trip around the world? How will her creditors ever collect what they are justly owed?
Probate is the court procedure that answers these questions. At the beginning of the probate proceeding, someone, usually the person nominated in the Will as the Executor, asks the court to accept the Will that is offered as decedent’s last Will and asks to be appointed Executor. At the same time, this person publishes notice of death in a local newspaper and gives written notice of the court hearing to all other members of the decedent’s family and decedent’s creditors. Anyone who has an interest in the estate can object at the time of the hearing. If there are no objections, the Will is “accepted for probate,” an Executor appointed, and creditors are given 120 days to file claims against the estate. After the 120 day time period has run, the Executor files a report with the court showing all expenses incurred, all property of the decedent that has been accounted for, income from that property, and taxes paid. The Executor then asks the court to approve the report and allow distribution of the assets of the estate according to the terms of the Will. Now, you can finally sell Mom’s house because you’ve recorded with the County Recorder a certified copy of the Probate Court Order showing you to be the owner.
Of course, if Mom had a trust, probate could’ve been avoided.