After the death of a loved one, the money and property included in the estate must be distributed to their heirs. In some situations, the estate is required to go through the probate process so that the assets can be properly distributed. To probate a will, the process requires completion of several steps so that the final distributions of the estate property can be made. Here is a basic description of the steps required in the California probate process.
Before the probate process can formally begin, you need a personal representative
Before the court can probate a will, it is necessary to appoint someone to manage the process. Most wills include a provision that names a personal representative to take on that duty. If the will does not identify a personal representative, or if there is no will at all, the court will appoint someone to serve. The personal representative, sometimes referred to as an executor or administrator, will take possession of the estate property, carry out the necessary steps and ultimately distribute the property to the correct individuals.
The first step to probate a will is 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 decedent resided. 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 days.
The next step is 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 potential creditors.
Proving a will if there is one
If a will exists, 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.
Collecting, appraising and inventorying the estate property
One of the essential duties of the personal representative is to take possession of the assets in 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 generally require an appraisal and inventory of the estate property.
Valid creditor claims must be paid
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.
Paying taxes if any are imposed
The personal representative is also responsible for ensuring that all 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.
Closing the estate is the final step
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.
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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