If a loved one passes away and you are appointed executor or administrator, you may have to go through a process called probate.
Attorney Maxwell compassionately guides executors through the probate process, acknowledging that executors and beneficiaries alike are going through a difficult emotional process alongside the court process.
If, after reading this page, you are interested in learning options to avoid probate as part of your estate planning, please reserve a space at one of Attorney Maxwell’s upcoming workshops, call Attorney Maxwell’s office at (707) 580-9402, or send an email to firstname.lastname@example.org to set up a consultation.
Probate means that there is a court case that deals with:
- Transferring the property of someone who has died to the heirs or beneficiaries;
- Deciding if a will is valid; and
- Identifying the deceased’s assets, debts, and beneficiaries;
- Taking care of the financial responsibilities of the person who died.
- Distributing the remaining assets according to the deceased’s will (or, if there is no will, to the deceased’s heirs according to California’s default rules of distribution).
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
Probate is a lengthy and complicated process and can take years if the executor does not have an attorney’s assistance. The California Probate Code has hundreds of sections. Even with an attorney’s guidance, simple estates frequently take around a year to wrap up. Without an attorney drafting the numerous documents that must be filed with court and providing close guidance to the executor, enormous days can result, tying up money and frustrating beneficiaries.
THE PROBATE PROCESS
1. The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:
- Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
- Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration. The administrator usually is the spouse, domestic partner, or close relative of the dead person.
2. Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate. The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
3. After a probate case is filed:
- The probate clerk sets a hearing date.
- The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice, which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
- The petitioner must arrange for notice to be published in a newspaper of general circulation.
- A court probate examiner reviews the case before the hearing to see if it was done correctly.
- Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
- The personal representative gathers up the assets and prepares an Inventory and Appraisal to be filed. The personal representative will need to contact a probate referee to value the nonmonetary assets.
- The personal representative provides formal notice to creditors with the Notice of Administration to Creditors and pays the debts.
- A final personal income tax return is prepared for the person who died.
- The probate court figures out who gets what property.
- A Report of Sale and Petition for Order Confirming Sale of Real Property is filed with the court so that sales of real property are confirmed by the court.
- If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
- The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
- After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.
This process cannot be used for real property, like a house. If the person left $150,000 or less in real property, including some personal property, you may be able to use a form called Petition to Determine Succession to Real Property (Estates $150,000 or Less). You will have to file the Petition with the court, obtain and file an Inventory and Appraisal, and provide notice of hearing.