Probate is the process of properly distributing a deceased person’s assets and liabilities to their heirs. Here’s what you need to know about the basics of California probate.
Probate cases are primarily handled by either an executor, in the case of a will, or an administrator, in the case that there is no will. They will be appointed by the court as the personal representative to pay the debts and expenses, oversee asset collection, and distribute remaining estates to beneficiaries. Beneficiaries are the heirs, or those with the legal right to inherit, under the supervision of the court.
California Probate Laws
Unless there are extenuating circumstances, probate is required in California. Probate laws refer to court cases involving the following:
- Deciding if a will exists and is valid
- Transferring the decedent’s property to the heirs or beneficiaries
- Taking care of the decedent’s financial responsibilities
- Figuring out who is the decedent’s heirs or beneficiaries
- Figuring out how much the decedent’s property is worth
Not all estates are required to go through probate, but the majority will be processed through the courts. In many cases, it may be a simplified procedure with little oversight by the court. Simplified procedures are used when the value of the estate is under $166,250. If an estate is put in a living trust, it will not need to go through probate because the trust will automatically transfer title to the beneficiary. If all assets of an estate are attached to beneficiaries or are either payable upon death or transferable upon death, there is no need for probate.
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California Probate Process
The probate process can be a lengthy and complex process so it is important to understand the steps thoroughly and collect the necessary documents before heading over to the courthouse. Below are the basic steps of the California probate process.
Step 1: File the Petition
A probate proceeding begins with the filing of a petition at the California Superior Court located in the county of the deceased residence at the time of their passing. Make sure to get all papers necessary for filing. Fill and sign them completely and then file them with the county clerk. The petition should trigger a response hearing within approximately thirty (30) days.
Step 2: Hande of Notices
A notice of hearing will be published a minimum of three times in the local newspaper. In the presence of a will, a notice should be mailed to everyone named in the will, along with all legal heirs of the deceased, and provide notice.
Step 3: Prove the Will
Unless the will qualifies as a “self-proving” will, it must be proved valid which can be accomplished by having witnesses sign a sworn statement and submitting that statement to the court. States have their own rules concerning the creation and validity of self-proving wills. In some cases, the will contains specific language and/or an affidavit from everyone signing the will, which makes it unnecessary to prove the validity of the will. the court issues “Letters Testamentary” or “Letters of Administration,” appointing an executor and granting that person authority over estate assets.
Step 4: Collect Assets
The personal representative of the will must take possession of all of the deceased’s assets which are subject to probate. Some types of estate planning instruments are not required to go through probate. The court usually requires an inventory of the estate property and in some cases, an appraisal of certain property may be required. The personal representative is also in charge of any transfers of assets to heirs or names listed on the will. Some types of assets that may require a title change include the following:
- Stocks and Bonds
- Mutual Funds
- Brokerage Accounts
- Bank and Credit Union Accounts
- Physical assets (real property, motor vehicles, boats, and planes)
Step 5: Payments to Creditors
After creditors have been notified of the death, those with debts payable by the estate must submit a claim. The claims determined valid will be paid from the estate and all outstanding valid debts must be paid before other distributions can be made. This includes all bills, as well as funeral expenses. Under California, creditors are required to submit their claims within four months of the personal representative’s appointment.
Step 6: Estate Tax Payments
All estate taxes are paid, including federal estate taxes and state taxes, by the personal representative who would not be held personally liable for estate taxes. Personal liability may be imposed when the estate has been distributed before the taxes are paid and there is not sufficient property left to pay those taxes.
Step 7: Conclusion of the Estate
Closing the estate is the final step and involves providing an accounting of all actions taken by the personal representative concerning the estate. A petition, summarizing the estate and reporting all actions taken on behalf of the state, will be filed with the court. The petition also includes the fees to be paid to the personal representative and the estate attorney, if applicable. If there are no objections and the court approves the accounting, then an order will be entered by the court concluding the estate which then allows the personal representative to distribute the remaining assets to heirs and pay any remaining fees.
Probate Costs in California
There is a filing fee of about $435, however, some counties may inflate these prices.
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California Probate FAQs
How Long Does Probate Take in California?
The full probate process usually takes 7 months, minimum, in California. The entire case can take between 9 months to 1 ½ years, maybe even longer.
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What is the executor in charge of?
The executor’s job will probably last six months to a year. During the probate process, the executor is in charge of the following:
- All assets safe
- A house must be insured and maintained
- Heirlooms must be safeguarded from theft or damage
- Filing tax returns for the deceased person
- File for tax returns
- File for the estate
- Send formal notices
If there is no will, or the person named to serve as executor is not available, then usually a family member asks the court to be appointed as the “administrator” of the estate.
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