When a loved one dies, the money and property included in their estate need to be distributed to their heirs. In many cases, the estate must go through the probate process in order for the assets to be properly distributed. The basic probate process requires completion of several steps in order to close probate and make those distributions. This article will explain the 7 basic steps required in the California probate process.
Before the probate process can formally begin, you need a personal representative
Before the probate process can begin, it is necessary for the court to appoint someone to oversee the process. Most wills include a provision that nominates a personal representative to take on that duty. If the will does not name a personal representative, or if there is no will at all, the court will appoint someone to serve. The personal representative will take possession of the estate property, carry out the necessary steps and ultimately distribute the property to the correct individuals.
Step 1: Filing a Petition in probate court
The first step in starting the probate process is to file a petition with the California Superior Court in the county where the deceased resided at the time of his or her death. This petition triggers the court to schedule a hearing in approximately thirty (30) days. Some counties, due to congested court calendars, take longer to schedule a hearing.
Step 2: Issuing notices to heirs and creditors
Once the petition has been filed with the court, the notice of hearing will be published at least three times in the local newspaper. The notice must also be mailed to everyone named in the will along with all legal heirs of the deceased. Notice must also be given to known and reasonably ascertainable potential creditors.
Step 3: Proving the will, if necessary
If there is a will involved, the personal representative will be required to “prove” the will, unless it qualifies as a “self-proving” will. A will may contain a specific provision or an affidavit from all of the witnesses that makes it unnecessary to prove the validity of the will. Every state has its own rules regarding the validity and requirements of self-proving wills.
Step 4: Collection of the property of the estate
One of the essential duties of the personal representative is to take possession of the assets of the estate that are subject to probate. Not all property is subject to probate. If the title on an asset needs to be transferred into someone else’s name, that would be the responsibility of the personal representative. The court will require an inventory of the estate property.
Step 5: Paying valid creditor claims
After notice of the death has provided to creditors, those with legitimate debts must submit a claim. California requires creditors to submit their claims within four months of the appointment of the personal representative. If those claims are determined to be valid, they will be paid from the estate before other distributions are made to heirs or beneficiaries. Creditor claims include bills and funeral expenses.
Step 6: Paying taxes, if necessary
The personal representative is also responsible for ensuring that all estate and income taxes are paid before any distributions are made to heirs and beneficiaries. Generally speaking, a personal representative is not be held personally liable for unpaid taxes. However, if the estate has been distributed to the heirs before the taxes were paid and there isn’t sufficient property remaining to pay those taxes, personal liability may be imposed on the personal representative.
Step 7: Closing the estate by the probate court
The final step in the probate process is closing the estate. This step involves submitting an accounting of all transactions taken by the personal representative with regard to the estate. The personal representative will file a petition with the court which summarizes the estate and reports all actions taken. The petition should also specify the fees owed to the personal representative and the estate attorney, if applicable. If there are no objections to the accounting and the court approves it, then an order will be entered by the court concluding the estate. After approval has been obtained, the personal representative can distribute the remaining assets to heirs in accordance with the court’s order.
PLANNING TIP: For many people, the costs and delays of probate can be avoided by the creation of a comprehensive living trust-based estate plan.
Download our FREE estate planning checklist here. If you have questions regarding the probate process, or any other probate issues, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.