When someone passes away, the money and other property making up their estate needs to be distributed to their heirs. In many cases, the estate must go through the probate process in order for those assets to be properly distributed. This process typically requires several steps, including proving the existence of a valid will (if there is one), identifying and inventorying the property, appraising the property, paying debts and taxes, and then distributing the remaining property. A probate lawyer can help you understand these important steps.
Official appointment of personal representative of the estate
Before the actual probate proceedings can be initiated, the court must appoint the personal representative to manage the process. When there is a last will and testament involved, it usually includes a provision designating a personal representative to take on this duty. If that is not the case, the court will select someone to serve in that role. The personal representative is expected to be impartial in his or her representation of those who have an interest in the estate. This individual will ultimately take control of the estate property and distribute that property accordingly.
Filing the petition in probate court
In order to officially initiate the probate proceedings a petition must be filed with the court in the county where the deceased was residing at the time of his or her death. This petition triggers the court to schedule a hearing, usually in about thirty (30) days.
Handling notices to interested parties
Once the petition has been filed with the court, a notice of hearing must be published in the local newspaper. Notice must also be given by mail to everyone named in the will (if there was one), as well as all legal heirs and known or reasonably ascertainable creditors of the deceased. Finally, notice must be provided to other potential creditors so they have an opportunity to submit a claim with the court.
Proving the Will if required
If there is a will, it is necessary for the will to be “proven” unless it qualifies as a “self-proving” will. In some situations, the will contains specific language and/or an affidavit from everyone signing the will, making it unnecessary to prove the validity of the will. California has its own laws as to whether or not self-proving wills are valid and, if so, how they must be created or executed.
Collecting the estate property and creating an inventory
One of the main duties of a personal representative is to take possession of all of the decedent’s assets that are subject to probate. There are some types of estate planning instruments that, by their nature, are not required to go through the probate process in order to be passed on. Some types of property that may require only a title change include:
- Stocks and Bonds
- Mutual Funds
- Brokerage Accounts
- Bank and Credit Union Accounts
- Physical assets such as real property, motor vehicles, boats, and planes
The court typically requires an inventory of the estate property and that is a duty of the personal representative.
Making payments to legitimate creditors
In California, after the personal representative has provided notice of the death to creditors, those creditors are required to submit a claim within four months of the appointment of the personal representative. If those claims are determined to be valid, they can be paid from the estate. It is very important that all valid debts be paid before other distributions can be made. This includes bills and funeral expenses.
Paying applicable taxes
The personal representative is also in charge of paying any taxes that might be due. In most cases, a personal representative is not held personally liable for unpaid taxes, but if the estate has been distributed before the taxes are paid and there is insufficient assets left to pay those taxes, personal liability could be imposed.
Closing the estate after court approval
The final phase is closing the estate. This involves providing an accounting of all actions taken by the personal representative that relate to the estate. A petition which summarizes the estate and reports all actions taken on behalf of the estate must be filed with the court. The petition also includes the fees to be paid to the personal representative and the estate attorney. As long as there are no objections and the court approves the accounting, then an order will be entered by the court closing the estate. At that point the personal representative can then distribute the remaining assets to heirs as instructed by the court and pay any necessary fees.
If you have questions regarding probate, or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
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