Navigating Probate in California: Everything You Need to Know

If a loved one recently passed away, their assets must pass through the probate process to be distributed to their heirs. This will require the Executor/Administrator to gather all their assets and file a petition with the Court.

Then, the Court will schedule a Probate Hearing. During this first hearing, the Court will appoint an estate representative.

What is Probate?

Probate is the legal process that happens after a person dies. It involves proving that the deceased person’s Will is valid and distributing their property according to their wishes. During probate, the person who died (the “Decedent”) ‘s personal representative files documents with the probate court. The personal representative must file lists of the Decedent’s assets, debts, and who will receive each piece of property. Creditors then have the right to file claims against the estate. The personal representative must also pay the debts and taxes that the estate owes. The remaining funds are distributed to the beneficiaries. A formal or complete probate requires much more work and time than a simplified or summary probate. Most people choose a streamlined process when preparing their estate plans.

How Does Probate Work?

Probate is a formal, court-supervised process that requires specific steps to be taken in an exact order. These steps are regulated by state law, and an Executor/Administrator and attorney are needed to perform many of these tasks. Probate is necessary to determine heirs and pay creditors if a person dies with or without a will (intestacy). There are a few ways to avoid probate, such as with trusts and beneficiary-named assets (such as life insurance policies or retirement accounts). Even when probate in California is necessary, there are things you can do to make the process easier for everyone involved. It is essential to start early with the help of an experienced attorney. By helping the executor or administrator through the intricate legal procedures and paperwork and ensuring all court filings are proper and timely, an attorney can greatly help during the probate process. They can help identify and address potential challenges, such as disputes among beneficiaries or contested wills, and work to resolve them effectively. Additionally, an attorney’s expertise can expedite the process, potentially saving the estate time and money and ensuring a smoother distribution of assets to beneficiaries. 

What Are the Costs of Probate?

When a loved one passes away, it is not uncommon for family members to wonder what the costs are to administer the estate. The answer is that the cost of probate depends on many factors, including the size of the estate, whether or not the case is contested, and the amount charged by the attorney and executor. During the probate process, a court-appointed appraiser will inventory and appraise the estate’s assets. This valuation will serve as the basis for the statutory fees that the attorney and executor can charge. These fees are outlined in California Probate Code section 10810. These fees include filing fees and a fee percentage (4% for the first $100,000, 3% for the next $200,000, and 2% for the next $800,000). The attorney and executor can also be compensated for “extraordinary services.” However, this is left open to interpretation by the Court. Many of these costs can be avoided by creating an effective estate plan before a loved one’s death. An experienced estate planning attorney can counsel you and assist in executing documents such as a trust, will, advance health care directive, power of attorney, and trust transfer deed.

How Long Does Probate Take?

The duration of probate can vary widely depending on the complexity of the estate and whether there are any contests. A “formal” probate typically lasts 9 to 12 months, although it can take longer if there are hang-ups or anyone objects to the Petition. Once the Petition has been filed and formalities (such as publication) are completed, the Executor/Administrator may request a hearing date to determine if they will be granted full authority under California Probate Code SS 10400 – 10592 or limited authority with Court approval. In the end, probate is necessary for settling and distributing someone’s estate after death. However, it shouldn’t add to the already complicated and stressful time of mourning. Understanding when probate is necessary and how the process works can help ease some uncertainty at a difficult time.

What Happens After Probate?

If you handle someone else’s estate after their death, probate law can be confusing, stressful, and — dreary. The first step is to file a Petition for Probate (with the help of your probate attorney). Once that’s done, you’ll need to open estate bank accounts – a checking account to pay estate expenses and a savings account for liquid funds over and above what’s necessary for day-to-day management of the estate. The Executor or Administrator also must apply for and receive from the Court “Letters Testamentary” or “Letters of Administration.” This official document grants the person power to manage and distribute the Decedent’s assets per California law. Next, you’ll need to send notice of the upcoming hearing to anyone who was named in the Will or could be entitled to part of the estate under state law. The required form of notice varies by state. Finally, creditors must be notified of the death and given a specific time to file their claim with the estate. Any unpaid bills must be paid with money from the estate.