Updated: Nov 28, 2022
Find An Estate Attorney for Probate and Related Cases
When your parents, grandparents, and other loved ones make estate plans, they will appoint you as a beneficiary of such property or assets if they pass away. When these inheritances are larger, planning on how to handle them in the future can be critical to cutting costs while increasing the value of the inheritance.
Unfortunately, suppose someone you care about passes away. In that case, you will most likely already have a lot on your plate with funeral arrangements, telling family and friends, and mourning your tragic loss. The last thing you need to be concerned about right now is navigating a complex legal procedure that can leave people stressed and confused. One of the first people you can contact is an Estate Attorney in California, as challenging as it may be.
What is the definition of a probate asset?
Probate assets are assets that are exclusively in possession of the decedent. Probate properties are not those that pay-on-death clauses can pass. For example, if an asset is held in joint tenancy (but not in the tenancy in common) or if an appointed beneficiary has been chosen to obtain the asset after the owner's death, the asset is not subject to probate. The asset escapes probate when pay-on-death designations are rendered. All other properties are part of the estate, and if the overall value reaches $166,250, the estate must be probated in California. However, a spousal property petition normally prevents formal probate if there is a surviving spouse.
Such beneficiary privileges that can come into play during probate proceedings include (but are not limited to):
Beneficiaries have the right to request and obtain an accounting of any of an estate's activities from the personal representative handling the estate in probate should they wish to be kept up to date with an estate's activities, including any payments received or monies obtained on behalf of an estate.
Beneficiaries with a reason to suspect that a will or parts of it are invalid have the right to contest the validity of wills during the probate process.
Beneficiaries have the right to request relief from a personal representative if they believe it is not a good match for the estate (though it will be up to the court to decide this manner).
Beneficiaries have the right to sue personal representatives for violating fiduciary duties if they suspect they have misappropriated the estate's funds or have otherwise failed to fulfill their fiduciary duties.
The right to be represented by an Estate Attorney – This is probably the most significant beneficiary right to consider, and having an experienced Estate Attorney represent them will guarantee that all of their rights are secured in the probate process.
What happens at the first probate court hearing?
While only about 20% of all probate filings are accepted at the first hearing, if your case is one of the lucky ones and everything goes according to plan, the Order for Probate will be granted. The Court Clerk would then be able to deliver the Letters. The declaration of authority, known as "Letters," begins the probate process by granting the personal representative the authority to administer the estate's properties and perform other duties.
If any defects or requested supplementary details cannot be resolved before the court hearing, the case will be continued to a later date to allow for the filing of a supplement. This is a normal occurrence, and a Petitioner should not be alarmed if it occurs in their situation. However, it's important to pay close attention to the flaws or details the court requests. If you represent yourself in the event, you may relay this detail to the individual helping you with your probate paperwork.
If the Petition is granted, the Petitioner should receive a conformed and file-stamped copy of the Order for Probate and several approved copies of the Letters as soon as possible after the hearing. Keep in mind that Letters of Administration are only given in absolute probate. In small estate or spousal property proceedings, letters are not given.
The Letters and the Order for Probate are critical documents, and you should make every attempt to obtain them as soon as possible. It is recommended to have 2-3 certified copies of the Letters and a file-stamped copy of the Order. Remember that the Order for Probate might not be issued at the hearing in some cases. The court will send you a copy of the Order several days after the hearing in this regard.
Unfortunately, the Court Clerk will not be able to submit the Letters until the Order for Probate has been signed by the judge. As you can see, the personal representative cannot obtain certified copies of the Letters during the hearing due to the delay. When this occurs, the personal representative must return to the court to pay for and Order certified copies of the Letters from the Court Clerk after receiving the filed Order for Probate in the mail. The process might be long and complicated, and a Probate Lawyer can help keep things on track for you.
What do you carry to your hearing on probate?
Clients sometimes raise this question right before their scheduled hearing. In probate cases, the court will usually issue a court order depending on the result of the hearing. In this respect, your Probate Lawyer will do so if the Order can be filed with the court before the hearing. Unfortunately, not all courts permit the filing of papers before a hearing. As a result, an Estate Attorney will likely advise clients to print and take a copy of the draft Order so that they can appeal it to the court. Furthermore, since courts can not often process orders "on the spot," it's a good idea to have a self-addressed, stamped envelope on hand for the court to use to return the filed Order to you.
The court will issue "Letters" if you are filing a full probate case, and this is the first hearing in the matter. Keep in mind that Letters are only given in full probate cases, not small estate matters or spousal proceedings. If the Letters have not been pre-lodged with the court, you will need a copy of the original, signed Letters, and a self-addressed envelope to send to the court for processing.
It's important to keep up to date on any filed paperwork you obtain from the court. As a result, if you receive provided "Letters" or a filed "Order," please email a copy to our office.
A certified copy of the Court Order will be needed in most cases. If the court processes the Order at the hearing, you can obtain a certified copy of the Order and a certified copy of the Letters from the Court Clerk's Office (in full probate cases.)
Why does the probate court require a bond?
A probate bond protects the decedent's family members if the executor violates a fiduciary obligation when managing the estate during probate.
The bond size is usually proportional to the size of the estate. According to Probate Code 8482(a)(1)-(3), "the court can fix the amount of the bond in its discretion, but the amount of the bond shall not be more than the total of:
The personal property's approximate worth.
The estate's likely annual gross profits.
The approximate value of the decedent's interest in real property if autonomous administration is given as to real property."
The following situations do not necessitate the posting of a bond:
The Will does not need a bond. 8481(a) of the Criminal Code (1). Even if the Will waives the requirement of bond, the court can require it if the following conditions are met:
Probate Code 8481(b)
If the proposed representative lives outside of California, or if there is another compelling reason. 7.201 of the California Rules of Court (b).
In writing, all beneficiaries waive the bond, and they will either do not require a bond or there is no will—8481 (a) of the Probate Code (2).
The executor has been appointed as a trusted firm. 83, 301 of the Probate Code (a).
How are the debts of the deceased handled?
Anyone responsible for winding up the affairs of a deceased person must ensure that all valid debts are paid. There are two ways that claims are received: formally and informally.
On a formal basis, the publication of the Notice of Petition to Administer estate in the newspaper serves as legal notice to all creditors, requiring them to file claims within four months of the letters' issuance. However, in some cases, a creditor can file a claim after the four-month duration has passed. Claims must be lodged with the court and served on the personal representative; otherwise, they would be dismissed. In addition, you must give written notice to all established or fairly ascertainable creditors within four months of receiving the letters, and you must continue to give notice when you become aware of new creditors.
Informal claims are filed when bills arrive at the decedent's last address. If you have independent administration power, Probate Code 10552 lets you settle the debts at your leisure without needing court permission or a formal argument.
Furthermore, unless you question the amount or validity of the debt, Probate Code 9154 allows you to settle debts accrued by the decedent before death within 30 days after the claim period expires without having to file a formal claim unless you dispute the amount or legitimacy of the debt for any reason. You can ask your Estate Attorney for details that might be unclear to you.
What are the costs of probate?
Filing a California probate case comes with a slew of third-party fees. These expenses do not include skilled document processing services or legal fees if you appoint anyone to assist you.
A traditional estate can incur judicial expenses and other compulsory fees. The following is a list of popular third-party costs in a complete California probate:
Fee for filing a petition in court for the first time
Each newspaper charges a different fee for lodging. When there are many newspaper options that are suitable for publication, a person can shop around for the best deal. Other times, you will only have one choice.
Letters certified copy
Probate Referee – The probate referee is the person in charge of valuing the estate's properties. They will charge statutory fees based on the gross value of all the properties they appraise. They can also charge a small fee for mileage and copies.
Charge for filing a Petition for Final Distribution with the court
Order certified copy
Fee for recording
How long does probate in California take?
A standard California probate proceeding may be completed in seven to twelve months if there are no unusual issues. Hearings are usually held six to ten weeks after the initial probate petition is filed due to court overcrowding. There is a four-month creditor claim period after Letters of Administration are given. Other delays, such as appointing a probate referee, finishing the inventory and valuation, meeting with creditors, addressing tax problems, or will competitions, could cause the probate to be delayed any longer.
Is it possible for a minor to inherit property by probate?
Generally, land cannot be transferred to minors unless a trustee for the minor's estate has been named. However, if the sum to be allocated is minimal, the decedent will name a custodian to obtain the minor's property, or the minor will have a court-appointed guardian.
If no named guardian exists and the decedent did not name a custodian to receive the minor's property, and the minor's total estate (what the minor already owns plus what they are inheriting) does not exceed $5,000, money or other personal property inherited by the minor can be delivered to the minor's parent. They have the option of keeping it in confidence for the minor until they hit the age of 18.
If the minor has no guardian of the estate and the decedent did not name a custodian, but the property to be transferred is not worth more than $10,000, the personal representative will appoint another adult as custodian under certain conditions. These are the conditions:
The personal representative must be convinced that the transition is in the minor's best interests.
The Will cannot forbid or include clauses that are incompatible with the transition.
If money is to be given to a minor, the court may order that it be deposited in a bank account under the supervision of the court.
What are Probate Letters?
Letters may be considered the estate representative's "evidence of legitimacy" to act as the estate representative in a probate proceeding. When a decedent leaves a will, letters of testamentary are sent to the executor of the estate. When a person dies without a will, letters of administration are given. The Court Clerk issues letters similar to the representative's "driver's license" in a probate case. Banks and other agencies that need court evidence that the individual has been given court authority to act on behalf of the decedent and their estate may receive letters.
After the first hearing, letters are submitted to the estate representative. After the Judge has signed and filed the Order for Probate, the estate representative must go to the Court Clerk's office to obtain multiple approved copies of the Letters. To substantiate their authority as estate representative and administrator, the representative would be expected to send a certified copy of the Letters to banks and other institutions.
When does probate become final?
If all debts and taxes have been paid or properly covered, and no issues prevent the estate from being closed, the probate estate can be closed at any time after the creditor's claim period (four months from the date letters are issued). The personal representative should file a Petition for Final Distribution to close the assets. The estate's assets will be allocated to the heirs or survivors if the court approves the Petition.
What happens after the Letters have been sent out?
There is a four-month waiting period after Letters are released in a California probate until the estate can be closed and circulated, during which time creditors can file claims. All bank accounts and other finances in the decedent's name should be converted to estate accounts in your name as the executor or administrator during this period. Both funds collected during the probate process should be deposited into the estate checking account, and administrative expenses, including court costs and publication fees, should be charged from the estate account. Each deposit should be recorded in great detail.
What are probate calendar notes, and what are they used for?
In larger jurisdictions, someone from the court reviews the probate petition after filing it to see if it is complete and meets certain criteria before the hearing. The examiner makes notes and notations several days before the hearing. These probate notices are often available on the court's website.
If the notes suggest that further detail or corrections are required, you can prepare and file a supplement to the petition with the necessary information before the hearing. Probate notes also mention shortcomings or request additional details, necessitating the filing of a Supplement to the Petition. Prior to the scheduled hearing, there might be enough time to address the probate notes.
About 20% of all probate cases filed are allowed on the first hearing, regardless of whether the case is filed by an Estate Attorney or a complainant properly.
What is the role of a probate referee?
A "probate referee" determines the value of such properties in the estate as of the decedent's death date. The estate agent is responsible for preparing an inventory of the properties subject to probate for the referee to appraise after the Order for Probate is signed and the court names the referee. This is performed on a form called an "Inventory and Appraisal," which includes attachments that describe the decedent's properties that are subject to probate. The completed Inventory form is sent to the probate referee, who appraises the properties listed in the attachments, assigns values to the inventory schedule, and returns it to the probate court for filing. It is also necessary to make the court waive the probate referee's appraisal.
What is the first step in the probate process?
You begin the probate process by filing a petition and any requisite supplementary preliminary paperwork with the Superior Court clerk in the county where the decedent lived at the time of his death, regardless of where he died or left the land. The probate petition is filed by the individual who wishes to be named as the estate representative. The petitioner is the name given to this person. Consider one of our prescreened California Lawyers in your California Attorney Search.
In a probate proceeding, who will serve the estate?
In a legal case, the estate agent (executor or administrator) represents the estate. The estate representative is the individual named in the Will as the executor. If there is no will (the decedent died intestate), the court will appoint an "administrator" to manage the estate. If there is a will, but no executor has been appointed, or the executor cannot serve, the court will appoint an "administrator with will annexed" to manage the estate.
Do I have to serve as executor if I am called in a Will?
If you decline to serve, the court will most likely nominate the alternative executor as a personal representative. The court will nominate another if an alternative executor is unavailable or does not wish to serve. The court normally appoints a competent family member or an impartial specialist fiduciary.
You have the option to resign as a personal representative at any time. However, you may be required to give the court an "accounting" for the time you served.
Will I be compensated if I act as executor?
Personal representatives typically receive a statutory fee of 2% to 4% of the probate estate in addition to their out-of-pocket costs for managing and settling the estate. As the scale of the estate grows, the percentage decreases. The court must approve all payments and expenses. In exceptional cases, the court can grant additional fees.
What happens if the personal representative does not fulfill his or her responsibilities?
The court has the power to reduce or refuse compensation and to appoint a new personal representative. The personal representative can also be held liable for any damages incurred.
A personal representative can be kept responsible for the following:
improperly handling the estate's properties
not collecting claims and money owed to the estate
Defaulting on debtors
selling an asset without the authority to do so or at a price that isn't acceptable
failure to file tax returns on time
distributing land to the incorrect recipients
distributing land to beneficiaries before paying all creditors, etc.
What if the Will is challenged?
A "Will Contest" begins if anyone files an objection to the Will or creates another Will. Will competitions are popular, but only a few people win them. Nonetheless, they can be costly in terms of both resources and time.
When is it possible to challenge a Will?
Most will contests are brought by prospective heirs or beneficiaries who received little or nothing. Will contests must be filed in Probate court within a certain number of days of obtaining notice of the decedent's death, a petition to admit the Will to probate, or the issuance of Letters Testamentary to a personal representative.
The following are some examples of reasons to contest a Will:
There is a subsequent Will that, if true, will take the place of the previous Will
The Will was written while the decedent was not mentally capable of making one
Fraud, omission, or "undue power" resulted in the Will
The decedent's Will was not properly "executed" (signed)
The ostensibly genuine Will is simply a forgery
The Will is invalid for any other reason (such as a pre-existing contract)
You can employ an experienced Probate Lawyer if there is a Will dispute. The probate court has the power to invalidate the whole Will or only the part that is being contested. Unless a prior repealed Will is resurrected and admitted to probate, the proceeds will most likely be distributed according to state intestacy laws if the entire Will is declared invalid.
What happens if there isn't a Will?
The probate court appoints a personal representative if a person dies without a Will (known as dying "intestate") (known as an "administrator"). The most significant distinction between a dying testate and a dying intestate is that an intestate estate is divided according to state law (known as "intestate succession"). A testate estate is divided according to the decedent's wishes as expressed in his or her Will.
What happens if you are unable to locate a Will?
What happens if a Will is lost or cannot be found is determined by the facts and conditions and state law. If the decedent's Will is absent because he or she purposefully repealed it, the decedent's estate will be divided according to an earlier Will or the laws of intestate succession.
If a Will is missing because it was held in a bank vault that was destroyed in a fire, the probate court will allow a photocopy of the Will (or the lawyer's draft or computer file) if the decedent signed the original properly.
What if the decedent owned property in several states?
Who gets the decedent's personal property (wherever it was located) and the decedent's real property located within the state is determined by the state's probate laws of which the decedent was a permanent resident. This is why, almost always, probate is filed in the decedent's home state.
If the decedent owned real estate in another state, the rules of that state govern how the property is distributed. In addition to the home state, probate would be required in any state where the real property is located. The system for distributing the decedent's real property varies by state. And if a Will exists, it must first be admitted to probate in the decedent's home state before being submitted to probate in each state where the decedent owned real property.
"Ancillary probate" refers to the additional probate process. Some states require an appointment of a personal representative who is a citizen of the state to manage the estate.
How are creditors compensated?
Notifying creditors of the death is a part of the probate procedure. The notice criteria differ. You may be required to provide clear notice in certain circumstances. In certain cases, you must place an obituary in the newspaper of the decedent's hometown.
Creditors have a certain amount of time to file a petition with the court for the sums owed. The bill is paid from the estate if the executor accepts the claim. If the executor denies the allegation, the creditor will have to sue for payment. If funds are insufficient to cover all obligations, state law decides who receives payment first.
To pay accepted creditor claims, the personal representative will most likely sell land. The remaining claims will be charged pro rata.
Do I have to pay creditors out of my own pocket if I am a beneficiary and the estate does not have enough money?
You cannot be held liable for the general debts of others without your permission, according to the statute. The beneficiaries should not be required to pay the creditors simply because they are beneficiaries unless the decedent gave away their properties to anyone immediately before dying or worked in concert with them to defraud the creditors.
After paying the creditors, there might be little left in the estate for the beneficiaries. On the other hand, the beneficiaries would not owe the creditors any money. Even then, whether the decedent's children or heirs received property or assets from the decedent or the estate, assumed responsibility for the decedent's treatment, or guaranteed payment, they might be personally responsible for any or all of the decedent's debts.
In probate, how are taxes handled?
Death has two meanings in terms of federal and state taxes:
It denotes the end of the decedent's last tax year for filing an income tax return and the date of the decedent's death.
For tax purposes, it creates a new, separate entity known as the "farm."
You will need to fill out and file one or more of the following forms for federal taxes. (This varies depending on the decedent's wealth, the size of the estate, and the estate's income):
Final Form 1040 Federal Income Tax Return (personal income tax return of the decedent)
Federal Fiduciary Income Tax Returns for the Estate (Form 1041)
Return on Form 709, Federal Gift Tax (s)
Federal Estate Tax Return (Form 706)
For California taxes, the executor must file all necessary state income tax returns, state fiduciary income tax returns, estate tax, and gift tax returns during the probate period. Other taxes, such as local real estate and personal property taxes, corporation taxes, and any special state taxes, may be applicable.
The executor must also verify taxes due for years before the decedent's death.
Is it my responsibility to pay the balance of my deceased spouse's bill?
Perhaps. You will be obligated to pay the bill if you and your partner have the same bank account, credit cards, checks, and other financial instruments. You would not be responsible if the credit cards or accounts were opened using only your spouse's details as a guide. Before the remainder of the estate is split among the heirs, creditors generally recover their debts from the estate.
What is the best way to find out whether there was a Will?
To begin, contact the Probate Court in the county where the decedent resided. If the Will was filed, it is possible that the public will be able to view it. You can also buy a copy of the book. You may also employ a Probate Lawyer or legal service bureau to conduct your search and obtain a copy on your behalf.
However, many people, including those with significant assets, die without a Will. Furthermore, whether the decedent owned all of his or her assets in a living trust or a shared ownership agreement, the Will does not need to be probated.
What if anyone dies and I am in control of the Will?
And if there will be no probate, the statute requires you to "deposit" the Will with the superior court of the county where the decedent resided. There is no charge for this service.
However, the court would not recognize Wills from those who are still alive
How do I keep track of what's going on in the probate case as an heir?
Certain requests, such as the petition for election of the personal representative and the final petition when the estate is closed and circulated, will be automatically notified to you. You may also get a Notice of Proposed Action if the personal representative wishes to sell real estate.
File a Request for Special Notice if you want copies of anything filed in the probate court concerning the assets. There is no charge for submitting this paper. If you have any concerns, you can contact the personal representative directly. You can also contact the estate's solicitor.
Bear in mind, however, that the solicitor represents the personal representative, not the heirs. Consult an Estate Attorney if you have questions about the personal representative's estate management.
Find A Probate Lawyer in California
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