If you have a family member who has recently passed away, or you just have questions about probate, turn to the compassionate team at Loew Law Group. We can walk you through all aspects of estate planning and assist with the California probate process.
What Is the Probate Process?
When someone passes away, probate takes place. This is the court-supervised process by which that person’s money and assets – collectively known as their estate – are distributed to his or her heirs. The purpose of probate is to avoid fraud by ensuring that those who claim someone’s property have the right to do so. For that reason, the process is often complicated, and not all estates must go through probate.
How the Probate Process Works in California
Estates with a total value of $166,250 or more will need to be settled through probate. The simplified probate process in California is:
- File for probate and send out notices
- Court hearing and letters testamentary
- Make an inventory of the decedent’s property
- Pay all creditors and taxes
- Close the estate and distribute all assets to the heirs
These steps are explained in detail below.
Filing for Probate and Sending Notices
Probate is initiated by filing a petition with the California Superior Court in the county in which the deceased individual lived at the time of their death. This is done, in part, to request a court hearing to appoint an estate representative. An original of the will, if there is one, must be filed with the petition.
If there is a will, then the estate representative will be the executor who was named in the will. If there is no will, the court will appoint an administrator of the estate. By statute, there is an order of individuals who would be appointed as an estate administrator, starting with the surviving spouse or domestic partner and then down the list.
There are circumstances in which the identity of the administrator is not clear (e.g., if the same two people share priority under the statutory list of individuals to be appointed). You should speak with an attorney if you have concerns or questions about this.
Once the petition for probate is filed, a notice must be published in the local newspaper. The purpose is to notify potential creditors of the probate proceedings. Everyone named in the will (if there is one), and other legal heirs of the decedent, must also be notified.
Court Hearing and Letters Testamentary
At the hearing, the court appoints either the executor or administrator and determines whether the will (if there is one) is valid. There are other tasks such as confirming that proper notice was sent and determining who the decedent’s heirs are.
At the conclusion of the hearing, and assuming everything is in order, the court issues what are called letters testamentary (or letters of administration). These letters give the estate representative authority to conduct certain duties on behalf of the estate, such as securing the property and assets of the decedent.
Making an Inventory
The next step is for the executor or administrator to make an inventory of the portion of the decedent’s estate that is subject to probate. Not all of what the decedent owned will need to be handled by probate. An example is a life insurance policy with a named beneficiary.
All real and personal property subject to probate will need to be carefully organized and identified in what is known as the inventory. Debts must also be identified. Once the assets are properly inventoried, the list is sent to a neutral appraiser to assign a value to each item. The appraiser then returns the inventory and appraisal to the estate representative, who files it with the court.
During this time, the estate representative has other duties such as notifying the Social Security Administration if the individual was receiving monthly payments. At all times, the estate representative is required to act as a fiduciary, which means he or she is trusted to manage the estate in everyone’s best interests.
Paying Creditors and Taxes
All valid debts must be paid before the decedent’s property can be distributed. In California, creditors generally have four months from the time the estate was opened for probate to file claims. After the creditor submits its claim to court, the estate representative will either pay the debt or dispute it. The executor or administrator is also responsible for ensuring all estate taxes are timely paid.
Closing the Estate and Distributing Assets
After all debts and taxes of the estate are paid, the representative files a petition with the court to close probate. The petition includes an accounting of all activities with respect to the estate as well as the fees, if any, to be paid to the representative and the estate attorney. If the court approves the accounting and there are no objections, an order is entered which concludes the estate.
At this point, the remaining assets are distributed to the heirs and any necessary fees are paid.
What is the Probate Process for Small Estates?
As mentioned above, estates with a total value of under $166,250 generally do not have to go through probate. These can be handled by a much simpler process often called “summary probate.” There are other rules and qualifications that apply, so it is a good idea to consult a knowledgeable probate attorney to determine whether you can take advantage of this alternative.
Contact Our San Mateo Probate Attorney Today
Estate representatives are expected to perform a number of duties on time, diligently, and comprehensively. This often makes probate overwhelming, even for the most organized and responsible executors and administrators. You owe it to yourself and the estate to talk to the experienced probate attorneys of Loew Law Group. We’re dedicated to providing our clients with outstanding legal services to help them with any matter involving trusts and estates. Give us a call today to schedule your consultation.