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, which can take a significant amount of time, depending on how probate is handled. However, with the help of one of our Sacramento probate lawyers, there may be a way to speed up the process.
The basics of the probate process
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.
Requesting an expedited hearing
What many California residents do not know is that, under the California Probate Code, they can ask the probate court to schedule the initial hearing within 30 days from the opening of the probate estate. Specifically, the California Probate Code’s Section 8003, which provides, in relevant part, as follows:
The hearing on the petition shall be set for a day not less than 15 nor more than 30 days after the petition is filed. At the request of the petitioner made at the time the petition is filed, the hearing on the petition shall be set for a day not less than 30 nor more than 45 days after the petition is filed. The court may not shorten the time for giving the notice of hearing under this section.
In Sacramento County, like many other counties with crowded calendars, the first hearing date might not be scheduled for at least 3 months. For those who are looking to reduce the time it takes to probate and ultimately close an estate, invoking Probate Code Section 8003 could be very useful. As we know, despite how the section is worded, an expedited hearing is not automatic.
The first step in probate is filing the petition
The first step in starting the 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 (30) or more days depending on the court’s availability.
We can help with proving the will
If there is a will, 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.
Be sure to pay debts and estate taxes as necessary
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.
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.
Closing the estate by the probate court
After the personal representative’s duties have been performed, 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. 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 the appropriate heirs or designated beneficiaries.
If you have questions regarding probate or any other estate planning issues, contact us at the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
Latest posts by Timothy P. Murphy (see all)
- Use Trust Protectors for Added Protection and Flexibility - October 13, 2019
- How Will You Obtain the Care You Need? - October 11, 2019
- Income Tax Basis in Estate Planning - October 9, 2019