Is Probate Necessary?
It will first need to be determined if probate is necessary. Perhaps the deceased owns assets in joint tenancy or has a living trust which details how assets will be distributed. There may be accounts that are set up with a payable-on-death beneficiary. In some cases, assets inherited by a surviving spouse may be able to use a streamlined process using a Spousal Property Petition. In this case, the probate court is involved, but the process is much simpler—and much quicker. Finally, if the total value of the probate estate is $166,250 or less, beneficiaries can claim assets through a streamlined summary California probate process, which requires a simple, sworn affidavit.
While the California probate process may not be overly complex, it can be both lengthy and expensive in some instances. California probate begins with an executor—either one named by the deceased in his or her will, or one named by the court if there is no will, or if the will has been deemed invalid. If a will was left by the decedent, the courts will determine the validity of the will by having the witnesses to the will sign a sworn statement.
If there is no will (or if the person named as executor of a will is unwilling to serve or unavailable for some reason), a family member can petition the court to be named administrator of the estate. The executor will then file the will (if one exists) along with a document called the Petition for Probate with the probate court. The court will issue Letters Testamentary or Letters of Administration for the executor.
An executor or administrator is held to the highest standards of fiduciary duty, sworn to act in the best interests of the estate and the beneficiaries of the estate. Executors and administrators should be aware that the average probate in California can take from nine months to a year and a half to complete. The duties of an executor include the following:
- Taking inventory of all the decedent’s assets;
- Managing any of the decedent’s assets during the probate, including rental properties and investments;
- Notifying all creditors;
- Notifying all potential beneficiaries;
- Providing a thorough accounting to the court
- Following all orders of the court;
- Paying any debt against the estate;
- Defending potential creditor lawsuits;
- Filing all final income tax returns for the estate, and
- Distributing remaining assets (once debts and probate expenses are paid) to beneficiaries according to the will instructions, or, in the absence of a will, according to California probate law.
Additional Information Regarding the California Probate Process
A bank account must be opened for the estate, and a taxpayer ID number applied for. An inventory of all probate property will be taken, and, when applicable, appraisals of probate property. It is important that the executor be impartial regarding representation of all parties with an interest in the estate.
When the executor files the Petition for Probate, there will be a filing fee of approximately $435. The Petition for Probate must be filed in the county where the deceased lived, and formal notifications must be sent to beneficiaries and creditors. Filing the Petition for Probate triggers the court to schedule a hearing which will take place in approximately 30 days.
Most California probate cases allow the executor to handle the majority of probate matters without obtaining probate court permission. Generally speaking, the executor is allowed to sell property belonging to the estate, approve or reject claims from creditors and pay taxes with no court supervision. Selling real estate, however, does require approval from the probate court.
Once the probate process begins, the executor or administrator must get organized by setting up a system that ensures debts and assets are not overlooked. The executor is charged with keeping all assets of the estate safe. This can include ensuring a home is properly insured and maintained and keeping heirlooms safe from theft or damage. The notice of the hearing must be published a minimum of three times in the local newspaper, as well as being mailed to everyone named in the will and all legal heirs of the deceased.
The notice of hearing must also be sent to all creditors of the deceased. In the state of California, creditors have four months to come forward with their claims. Many estates will not receive any creditor claims, rather the executor will simply pay the outstanding bills. If there is not enough money in the estate to pay creditors, the executor must follow the California Probate Code to determine the order in which claims are paid.
The final step of the probate process involves providing a thorough accounting of all actions taken by the executor regarding the estate. There will be fees paid to the executor as well as to the probate attorney, when applicable. Because the California probate process requires so much paperwork, it can be extremely beneficial to have an experienced California probate attorney helping the process along. Assistance from a knowledgeable California probate attorney can be invaluable in many instances, particularly if there is disagreement among heirs, there are more debts than assets, or there is an ongoing business involved.
Once you have an idea of the time, cost and lack of overall control related to the probate process, you may be considering the importance of a comprehensive estate plan. Even having a simple will is far better than having the state of California determine how to distribute your assets. Depending on your particular level of assets, as well as your wishes for how those assets are distributed, it could be that a living trust is better for you, or that you could benefit from having both a living trust and a will, particularly if you have minor children to consider. The experienced estate planning attorneys from the Gullotta Law Group can help guide you through the probate process as well as preparing an estate plan for you which will make the probate process as simple as possible for those you leave behind. Contact the Gullotta Law Group today.