In the event of a loved one passing away, the property left in their estate must be distributed to the right individuals. Usually, that means the estate has to go through the probate process. The portion of the property that must go through probate is referred to as the probate estate. When it is time for the probate estate to go through these court proceedings, there are generally 7 basic steps required in the process. Here is what you need to know.
Before the probate estate can be processed, you need a personal representative
One step that needs to be taken before the probate process can begin is appointing someone to manage the probate estate throughout the proceedings. The probate court will look first at the will, if there is one, and determine from its provisions if a personal representative, referred to as the executor, has been identified. Most wills include such a provision. If it does not, however, or if there is no will, then the court will appoint someone to serve in that capacity known as an administrator. Both executors and administrators are the personal representative who will be responsible for taking possession of the estate property, carrying out the necessary steps and ultimately distributing the property to the proper individuals.
Step 1: Filing a petition in probate court
The first step in the actual probate process is to file a petition with the appropriate California State Court. This petition should be filed in the county where the deceased was living at the time of his or her death. It is the petition that prompts the court to schedule a hearing, usually in about thirty (30) days.
Step 2: Issuing notice of death to heirs and creditors
After the petition has been filed with the proper court, a notice of the court’s hearing must be published in a local newspaper. The notice should also be mailed to all heirs and beneficiaries named in the will, as well as all legal heirs of the deceased who may not be named in the will and known or reasonably ascertainable creditors. If no will exists, then legal heirs and creditors still need to be notified. Finally, notice of death must also be provided to potential creditors, so they have the opportunity to submit a claim for payment.
Step 3: If required, the will needs to be proven
If there is a will, the personal representative is the person required to “prove” the will, meaning prove that it is valid. However, if the will qualifies as a “self-proving” will, this step may not be required. A will can include an affidavit from all of the witnesses that makes it needless to prove the validity of the will. California has specific rules regarding the requirements for a will to be self-proving.
Step 4: Gathering the property included in the probate estate
One of the basic duties of the personal representative is to gather and take possession of the assets included in the probate estate. The court also requires an inventory and appraisal of the probate estate property. Not all property is subject to probate, so only the applicable property will be included in the probate estate.
Step 5: Paying claims submitted by legitimate creditors
Once the notice of death has been provided to creditors, those that have legitimate debts are required to submit a claim for payment of those debts. California requires creditors to submit their claims within four months after the appointment of the personal representative. If it is determined that those claims are valid, they will be paid from the probate estate. Those claims must be paid before other distributions can be made to heirs or beneficiaries.
Step 6: Paying taxes when required
The personal representative is also responsible for making sure that all income and estate taxes are paid before the distributions are made to heirs and beneficiaries. In most cases, a personal representative will not be held personally liable for any unpaid taxes. However, if the estate is distributed to the heirs before the taxes were paid and there is insufficient assets remaining to pay those taxes, personal liability could be imposed on the personal representative.
Step 7: Closing the estate
The final step in handling the probate estate is closing the estate proceedings. This step requires a formal final petition, which, among other things, provides the court with an accounting of all transactions made by the personal representative that relate to the estate. It also requests permission to distribute the assets either as the will provides, or, if there is no will, as California law provides.
The petition should also address whether there are any fees owed to the personal representative and the estate attorney. As long as there are no objections to the accounting and petition and it is approved by the court, then an order will be entered by the court concluding the estate. Once approval has been given, the personal representative can distribute the remaining assets to heirs.
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.
Timothy P. Murphy
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