Overview of the California Probate Process
What is Probate? What Can I Expect?
When a loved one passes away, their estate often goes through a process called “probate”, where the assets of the deceased are managed and distributed under the supervision of the local superior court.
Losing a loved one is hard enough without having to deal with the hassle, expense, and emotional strain of prolonged litigation. We assist clients with everything from simple probate filings to complex contested estate litigation battles.
How we help with the Probate Process:
- Simplified small estate administration, including small estate affidavits
- Special administration petitions
- Set Aside Proceedings
- Summary probate administration
- General probate administration
- Negotiation and settlement of creditor claims against probate estates
The time needed to complete the probate of an estate depends on the size and complexity of the estate and California law governing the administration of estates.
Probates usually involve the following steps:
- Filing of a petition with the proper superior court
- Notice to heirs under the will or to statutory heirs (if no will exists)
- Petition to appoint a Personal Representative or Executor
- Inventory and appraisal of estate assets
- Payment of estate debt owed to legitimate creditors
- Payment of estate and income taxes, if any
- Sale of estate assets if necessary; and
- Final distribution of assets to beneficiaries/heirs
Q: What happens if someone objects to the Will?
An objection to a will or competing will is presented is known as a “will contest” and can be incredibly costly to litigate.
In order to contest a will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a dispute over the person designated in the will to serve as Personal Representative.
Q: Does probate administer all property of the deceased?
Probate is primarily a process through which title to assets only in the decedent’s name without a named beneficiary are transferred from the name of the deceased to the heirs via Intestate succession under California law or pursuant to the decedent’s valid Will.
The following types of assets do not go through probate:
- Property owned by a living trust. Such property passes to beneficiaries without having to go through probate.
- Property in which you own title as “joint tenants with right of survivorship” or “community property with the right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
- IRA and 401(k) accounts with designated beneficiaries.
- Life insurance policies.
- Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
Q: Is the Executor Entitled to a Fee?
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the decedent’s estate. In addition, you may be entitled to statutory fees and, in certain circumstances, also extraordinary compensation, under California law.
The Executor has to fulfill their fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in their care. Executors should retain an attorney and an accountant to assist with the probate.
Q: How much does probate cost? How long does it take?
The cost and duration of probate varies a lot depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate.
Common expenses of an estate include executor’s fees, attorneys’ fees, accounting fees, court fees, publication costs, appraisal costs, and surety bonds.