Updated: Nov 28
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