Probate is the process through which an individual’s assets (cash, personal property and real property) which are included in their estate, are distributed to their heirs. The basic probate process requires completion of several steps in order to close probate and make those distributions. This article will explain those basic steps as required in the California probate process.
A personal representative must first be established
Before the probate process can start, it is necessary for the court to appoint someone to oversee the process. Most wills include a provision that nominates an executor, i.e., the personal representative to take on that duty. If the will does not name an executor, or if there is no will at all, the court will appoint someone to serve, typically called an administrator. The personal representative will take possession of the estate property, carry out the necessary steps and ultimately distribute the property to the correct individuals.
A petition must be filed in probate court
The first step in starting the California probate process is to file a petition with the California Superior Court. The petition must be filed 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 or more days, depending on the congestion of the Court’s calendar.
Notices must be issued 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 potential creditors as part of the California probate process.
If there is a will, it may need to be proven
If a will exists, the personal representative may 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.
The property of the estate must be collected and inventoried
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 of an asset needs to be transferred into someone else’s name, that would be the responsibility of the personal representative. The court will generally require an inventory of the estate property.
Valid creditor claims must be paid out before other distributions
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.
If estate taxes are required, they must be paid on time
The personal representative is also responsible for ensuring that all estate 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 estate 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.
The probate court will close the estate when the process is complete
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.
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.
- 5 Types of Assets A Will Does Not Cover - January 22, 2022
- How Do I Know If Probate Is Necessary for My Spouse’s Estate? - January 20, 2022
- Can an Agent Make Gifts Using a Power of Attorney? - January 18, 2022