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Where Is Probate Filed?

In California, probate takes place in the Superior Court of the State of California. So in San Diego, it will be handled in San Diego County Superior Court. Some people are confused and think sometimes probate has to do with the federal government, but it does not.  All probates deal with property rights and all property rights are based on your state and county of residence.

What if the Decedent Owns Land and Property in More than One State?

There is main probate and ancillary probate. If somebody dies in San Diego County, the main probate will be filed where the decedent died or where they had their place of residence. If someone had a piece of real estate somewhere else in California, it will be probated through San Diego County Probate Court.

If someone had a piece of property in Texas, the San Diego Probate attorney will contact a Texas attorney and have them handle the probate in the Texas county where the property was located, and once that property is granted over to the estate, the it will be probated in San Diego. That sounds a bit complicated but the basic idea is that everything starts and flows around wherever the decedent died.

Do We Have to Go Through Probate if there is a Will?

The answer to that is actually pretty straightforward. A will is only a piece of paper signed by a deceased person, and at the time the first one is found, we don’t even know if the person had three or four wills drawn up. If there is more than one will, then which one is the last one?  Did the maker of the will sign it under duress and also were they competent to create one at that time?

A will has to be proven valid for a reason. No one can take a will to the bank and demand that they give them all of the money because they need a court order.  That’s what confuses people; they think the existence of a will means there’s no probate, but the fact is, you really can’t do much with the will without the judge’s court order. Everything goes to the judge, and the judge has to issue a court order to transfer assets.

Are there Several Types of Probate?

Generally, the primary probate is the main probate in a case and that happens where the decedent died, and an ancillary probate is when the decedent had property in a different state and that asset has to be liquidated to be transferred to the primary probate estate.

Who Moderates or Handles the Whole Probate Process?

The main job of an executor is to follow the probate code and do what the law tells them to do, but the judge actually moderates the probate process and watches everything that’s going on. The executor really cannot do things not approved by the probate court or the probate code.  But in terms of who is actually managing the probate, that’s the executor and his or her attorney.

Who is a Personal Representative and What are their Main Duties?

The term “Personal Representative” is a global definition for either the executor, who is the person that’s named to administer the will, or the administrator who is nominated and is appointed by the court when a person dies without a will.  So, the term “personal representative” can refer to executors, administrators or, in the case of an incapacitated person, a conservator.

For more information on Where Probate is Filed, please call (858) 278-2800 today to schedule a free initial consultation. Get the information and legal answers you’re seeking.

San Diego Estate PLanning Guide by Steven Bliss

Fundamentals of
Estate Planning

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