How Does Probate Work?

For many people, their first real contact with the legal system is in a probate. Since this may be their first real contact with the legal system, many are baffled about how probate works. Probate is part of the civil law system and unlike our criminal law system, our civil law system is completely passive; that is, nothing happens in probate unless someone pushes the case along. This is the exact opposite of our criminal law system where the police, sheriff, and district attorney are mandated to move cases forward.

Pleadings/Petitions

In probate, as with all civil cases, nothing happens unless someone files paperwork asking a judge to make orders and then obtains a court hearing. Thus, probate works by filing paperwork with the probate court. These papers are known as “pleadings” and are usually called “petitions.” Once a petition is filed, a court hearing is set. However, underlying this probate process is the fundamental principal of due process (explained next) which may not be either intuitive or make common sense.

Due Process

Due process is the cornerstone of the Anglo-American legal system. What it means is “notice and an opportunity to be heard.” However, that principal, “notice and an opportunity to be heard,” is carried out differently in every kind of a legal proceeding. In probate, due process means giving notice to all interested parties, typically by mail, and, at least initially, publishing notice of the first probate hearing in the local newspaper. This is quite different from the notice required in general civil proceedings where a party must be served in person and different from a criminal proceeding where there has to be a court appearance within stringent time limits.
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Administration of Estates Act (IAE)

There has been an effort in probate cases to make probate work more efficiently and to avoid multiple hearings. In California, this process is known as the Independent Administration of Estates Act, or IAE for short. The IAE short cuts the due process requirements so that the personal representative of the estate (aka executor aka the administrator) does not have to have a court hearing every time he or she wants to do something of significance, such as sell real property. All the personal representative has to do is mail notice of the action he or she intends to take at least 15 days prior to taking the action in question.

Closing a Probate Case

This notion of due process is so fundamental that in closing the estate, the petition (the paperwork that is filed) must say, in detail, exactly what has been done from the very beginning to the very end. This is mandatory to comply with the probate due process requirements. The closing petition is a summary of exactly how the probate process worked for the case. Unless the due process requirements were exactly complied with, the Court does not have the authority or jurisdiction, to close the estate.

Imagine going through the whole process and then not being able to get your probate case closed! This is one of the many reasons it helps to have experienced counsel guiding an individual through the probate process from the very beginning.

The Law Offices of David Baker has over 30 years of experience in probate and we work in the following Bay Area locations: San Francisco, Berkeley, Albany, Pinole, Crockett, Martinez, El Sobrante, El Cerrito, Vallejo and Richmond. Call us or contact us today to discuss your situation (510) 724-2020.
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