Summary of Probate in California
At some point in their lives, many people will have to deal with a probate case. Here’s what you need to know about California probate.
Probate refers to the court-supervised division of a person’s estate among beneficiaries upon death. Probate law is covered by the California Probate Code, which is one of 29 legal codes that comprise California law. Probate begins with the court appointment of an executor or administrator and involves figuring out who the beneficiaries are, paying debts, and dividing the estate.
What is Probate?
When an individual passes away, important issues arise regarding their property (referred to as their estate). If there is no Will, it must be determined what comprises the deceased person’s estate and who will receive property from the estate. If there is a Will, the value of the estate must still be determined and the property must be transferred to the proper party. In addition, the decedent’s debts must be paid. In many cases, these questions and considerations regarding a deceased person’s estate will be dealt with under court supervision. This is referred to as probate.
California Probate Code
Probate law is complex, and there are many associated laws. These laws comprise the California Probate Code, which in turn should be consulted and followed by those dealing with a deceased person’s estate or those who wish to create a valid Will. It holds provisions regarding what does not need to be probated, what constitutes a Will, how a deceased person’s debts are settled, and much more.
California Probate Laws
As stated, there are many probate laws in California. Here are a few of the key laws that anyone dealing with probate should be familiar with:
- California Probate Code Section 13100: If the value of the estate does not exceed $166,250, then probate is not necessary. The successor may simply receive the decedent’s estate. However, probate may still be recommended in some situations, such as when debts must be settled.
- California Probate Code Section 10810: If the personal representative (meaning the executor or administrator) hires an attorney, the attorney’s fees depend on the value of the estate. As such, the attorney cannot charge an hourly fee.
- California Probate Code Section 12200: The personal representative must complete the probate process within 1 year after their appointment. However, if they file a federal estate tax, then they have 18 months after their appointment to complete the process.
- California Probate Code Sections 6400-6414: These sections deal with intestate succession, which occurs when someone dies without a Will. These laws will inform administrators on who the heirs are and how much they should receive.
California Probate Process
The probate process can sometimes be long and difficult to navigate, but there are always basic steps that will be followed:
- After a person’s death, someone must petition to be appointed as personal representative (executor if there is a Will or an administrator if there is no Will) and may hire a probate attorney to help them file the petition for probate. Either the probate attorney or the personal representative (executor or administrator) will mail those named in the Will and all heirs informing them that there will be a probate hearing. They must also publish the notice in the local newspaper to inform creditors of the hearing.
- The hearing will occur several weeks later. The validity of the Will will be determined (if applicable) and the personal representative will be appointed.
- The personal representative will then identify and manage the associated assets until all debts have been paid and tax returns filed.
- The personal representative will then file a report with the court that accounts for income received and payments made.
- The personal representative will then be authorized to divide the remaining assets accordingly, and the property will be transferred.
FAQs About California Probate
What is probate?
Probate describes a case where a deceased person’s estate must be legally transferred to beneficiaries or heirs under court supervision.
Is probate necessary?
No. If the value of the estate is less than $166,250 then probate is not necessary. In a case such as this, simpler procedures may be used.
Who is the personal representative?
The personal representative is the person that is in charge of the probate process. If there is a will, then the named executor will usually be the personal representative. If there is no will, then the court will appoint an administrator, who is usually the closest relative of the decedent.
What is the probate code?
The probate code is a code of California law. It contains all of the laws associated with the probate process.
How much does probate cost?
According to the Santa Clara County Superior Court of California, probate costs usually amount to between 4 and 7 percent of the value of the estate.
Contact Us
If you have any more questions about California probate, contact us. Get your free consultation with the most qualified probate attorney for your unique legal situation!