What is the probate process in California?
The probate process in California is a court-supervised legal process that takes place after someone dies to administer their estate. Although the specific steps and time frame can vary, this is a general overview of what you can expect — noting that the whole process usually takes 18-24 months from start to finish.
1. Filing the Petition: The probate process typically begins when someone files a petition for probate with the superior court in the county where the decedent lived at the time of their death. If the decedent had a will, the executor named in the will usually files the petition. If there is no will, a qualified person, such as a surviving spouse or adult child, can file the petition to be appointed as the administrator of the estate.
Filing the petition triggers two things: a court date and a publication requirement. The person who files the petition is required to publish the date of the hearing and the intention of that person to serve as executor or administrator in the local newspaper to put people on notice of the proceeding.
2. Appointment of Personal Representative: At the initial hearing, the court will appoint a personal representative (executor or administrator) to manage the estate during the probate process. The personal representative is responsible for gathering the decedent's assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.
3. Notice to Creditors and Beneficiaries: The personal representative must provide notice of the probate proceedings to all interested parties, including creditors and beneficiaries named in the will or heirs at law if there is no will. Creditors have a specified period to file claims against the estate for any debts owed by the decedent.
4. Inventory and Appraisal of Assets: The personal representative is required to prepare an inventory and appraisal of the decedent's assets, including real estate, bank accounts, investments, personal property, and any other assets subject to probate. This inventory serves as a basis for determining the value of the estate and for distributing assets to beneficiaries. If there is real estate involved — or other non-cash assets — the court will assign a probate referee whose job is to value/appraise non-cash assets for the Inventory and Appraisal document.
5. Payment of Debts and Taxes: The personal representative must pay the decedent's outstanding debts, including funeral expenses, taxes, and valid creditor claims. California law prioritizes the payment of certain debts, such as funeral expenses and administrative expenses, before other creditors can be paid. Creditors who file valid claims are often willing to negotiate the amount due, but all valid claims must be resolved before the court will allow distribution of assets to beneficiaries or heirs.
6. Distribution of Assets: After debts and taxes are paid, the personal representative files a petition to the court to distribute the remaining assets of the estate to the beneficiaries according to the terms of the will or the laws of intestate succession if there is no will. In this document, the personal representative can request compensation and the attorney also requests compensation. Note that both the personal representative and the attorney are not eligible to receive compensation until the court approves it!
7. Closing the Estate: Once all debts are paid, assets are distributed, and any necessary court proceedings are completed, the personal representative can petition the court to close the estate. The court will review the final accounting and distribution of assets before issuing an order closing the probate proceedings.
It's important to note that the probate process in California can be complex and time-consuming. Additionally, probate can be expensive, as court fees, attorney fees (which are set by state law!), and other administrative costs may be incurred. As such, many people choose to engage in estate planning strategies to avoid or minimize the probate process, such as by creating living trusts. Contact me to create your living trust and help your family avoid dealing with probate.