Probate Process in California: How to file a Petition for Probate in California?
What is Probate Process in California?
Often when someone dies, the documents they left behind aren’t enough to figure out who should get their belongings. There is both real property like a home and personal property like cars and boats to consider. Any taxes or debts must be paid before funds can be distributed to heirs.
For the debts of the estate, the onus is on the creditors to get in line and submit a petition to be considered for payout. Medical bills and costs are typical in the final year of life. In the case of accidental death, depending on circumstances, the deceased estate may be liable. The order of payment is taxes, debts, and then heirs. Probate is primarily the legal process of authenticating the deceased will. More commonly now, however, Probate is seen as the entire process of settling someone’s financial affairs after they have died.
Unless the estate is small and uncomplicated, No matter whether there is a valid will or not, you will need to go thru the probate process. Those estates with a will are said to be testate. Those estates without a valid will are called intestate. The Court’s purpose is to facilitate and distribute funds from the deceased estate to pay outstanding taxes, debts and finally distribute the remaining funds to the heirs in accordance with local statutes. In this article, I intend to simplify and summarize the probate process.
It does not matter if there is a will or not. Only 46% of folks under 65 have a will and only 75% or 3 out of 4 elderly folks over 65 die with a will. A will is handy because it spells out the deceased’s intentions. If there is no will or it cannot be found, the Courts have the responsibility to equitably distribute the proceeds of the estate to first pay for taxes, the debts, then heirs. This process is called settling the estate and can take over one year to complete.
So you are probably wondering, who am I, and why should you listen to me? I’m a realtor here in California, specializing in probate and trust matters. My specialty is listing and selling properties in Probate. Getting Probate right isn’t just about making sure all the heirs get their due. It’s also about exiting the probate process with all family relationships intact.
I’m down at the courthouse on Tuesday reviewing all of the new probate cases involving real estate. From my past experience working with probate administrators, I know you might be feeling overwhelmed right about now. You see, I understand that handling the real estate is just one small part of all of your duties and responsibilities as probate administrator.
But here’s some good news: I can make your life much easier. No strings attached. My goal is that you might realize that the process isn’t as complicated as you had feared and that you would have a basic understanding of the process when you sit down for your initial interview with a Probate specialist attorney. I want to state upfront that I am not a lawyer. None of what you read here can or should be taken as or considered legal advice. There are no warranties or guarantees included by reading this article. As always, it’s my goal to serve in what small way I can.
It’s invaluable for you to have someone here locally you can call on and trust with your questions and concerns. Someone who has reputable contacts and service providers when it comes to servicing probate properties. Someone who knows what to do and when to do it. I know those things. It’s what I do. And I want to help you.
If you have any questions concerning the real estate involved in the estate, feel free to contact me, Kevin McClenahan – Realtor 858.284.7778. If you find that you need a probate attorney here in California, I can refer you to one of the best I have worked with in the past for a free initial telephone consultation.
Three Stages of Probate Process
Probate can be seen in three distinct stages. It is certifying the will, if there is one, as being valid through the court process. Then appointing an executor, typically someone within the family or a court-appointed administrator.
Stage two is collecting and liquidating the deceased assets, filling appropriate taxes. Probably this is the most time-consuming aspect, as well as paying off debts. This stage two is also known as settling the estate. Collecting is gathering together and inventorying all of a person’s belongings, personal and real property such as a home. The house is typically the most valuable asset a person owns.
Stage three is distributing the remaining assets to the beneficiaries and heirs following the will or state law.
I’m a realtor, and as a probate and trust specialist, I help the Executor or Administrator sell the home once they have permission from the Court to do so.
How long does the probate process take in California?
This permission is called authority. It usually takes the Executor 4-6 months to gain authority to sell the home. Then figure in average days on the market to sell a home is about one to two months; escrow takes another month to close, so you can see that just the home sale portion of the Probate can easily take 8-9 months. The last and final stage is distribution. Distributing the leftover assets to the heirs and beneficiaries in accord with the Decedent’s wishes expressed within the will, or if intestate, in compliance with state law. These laws are generally called laws of succession.
Once a will has been probated, approved to be valid by the Court, its terms are binding and carry the weight of the law.
Most estates will need to go to Probate, fully 95% of them, and here are a few things to keep in mind. Probate will take a lot longer than you might expect; over a year is typical. Attorney fees for Probate are often negotiable. You can lower your costs by doing more of the footwork and filings yourself, under the guidance of your attorney. Lastly, you lay off liability and avoid future risk from disgruntled heirs when you hire an attorney, so I will always recommend hiring a competent probate attorney to handle the closing.
If this is the case, one must go through what’s called an “administration process,” where a petition to open Probate is filed in Court to get everything sorted out. Some may wish to do this without an attorney, which some jurisdictions allow.
However, I strongly recommend you retain a lawyer that is a probate specialist. The main purpose for retaining a lawyer is that they relieve any liability you as the Executor have. That’s right, hiring a lawyer, you lay off the risk of being sued in the future by disgruntled or unhappy heirs. Unfortunately, this often happens in our highly litigious society and can ruin family relationships. Once you know you are responsible for the process, it’s easy to hire a probate lawyer to take on the responsibility.
When hiring a probate specialist attorney, you’ll get excellent counsel, speed the process as much as possible, and come to an equitable result that is less likely to be contested. Most importantly, you remove yourself from any liability, and the attorney does not get paid until the end, out of the proceeds of the estate. No money needs to come out of your pocket for legal fees. After an initial interview, the attorney may advise a few legal shortcuts that let many families avoid probate court altogether. Again, I highly recommend interviewing an attorney specializing in Probate, as it may be entirely avoidable.
Who initiates the Probate Sale Process?
In most cases, the Executor, the person named in the will as Executor, is responsible for organizing the deceased’s assets and debts and starts the process. More often, it requires some searching to find the will.
If the named Executor is dead, disabled, or uninterested in taking on the job, someone else must step in to start the process. Suppose there is no will or the name. In that case, Executor is unable or unwilling to serve. The Court looks to the spouse, child, or one of the relatives down thru the family tree in descending order to serve as administrator to Probate the estate.
Here a probate attorney can step in as a professional executor if none of the family are willing or eligible to settle the estate’s affairs. Remember, the lawyers’ fees are based on time on the job, so if a family member can help with the footwork and filing taxes and paperwork, the total legal costs can be reduced. Be sure to ask the lawyer during the initial interview about cost-reducing actions you can take. Retaining a lawyer who is a probate specialist is essential to reduce the liability of the Executor or administrator. Lawyers get paid from the proceeds of the estate at the very end of the probate process.
The person who asks the Court to probate an estate is the estate’s representative, also known as the Executor, and is either named in the will or is the next successor.
In the case the Court must assign someone to probate the estate, they are called the administrator. The Court will send the original will to a judge. The judge will check that the will is legal and correct. As stated before, and it’s instructive to repeat here, Probate used to be simple, the legal process of authenticating the deceased last will and testament. However, Probate is seen as the entire process of settling someone’s financial affairs after death.
What elements consider while filing Probate Petition?
In the petition form, the Petitioner must declare the following:
- The personal details of the Decedent.
- The Decedent’s citizenship, date, and place of death.
- The personal information of the Petitioner.
- Letters such as Testamentary, Administration with Will Annexed, etc.
- A Bond of assurance may be needed.
- Decedent’s probate property value.
- Details of how the Decedent died(testate or intestate).
- The names and contact information of the heirs and spouses’ personal details.
List of California Probate Processes
Filing Notice of Petition for Probate in San Diego:
The person that wants to bring a lawsuit or a claim needs to tell the other side that they want to do it. We may call it serving a notice. Within fifteen days before hearing, you need to serve the notice to all concerned. See California Code of Civil Procedure § 8110. To summarize, notice by mail should be completed by registered or certified mail, express mail, or overnight delivery.
California Probate Code 8121 mandates the publication of a probate petition.
After the probate petition is initiated in the California probate court, it must be published in the newspaper. The newspaper will let people know that there is a probate case and inform creditors and heirs a probate case has been opened. It’s also best, and a legal requirement, to let the people who might be affected by the court case. You do this by advertising in a periodical of legal notices, informing people who need to know about the court case. If you don’t, the judge may dismiss your case. Taking these steps will ensure that both parties have been notified and promptly proceed with their assigned court dates.
The first publication date must be at least 15 days before the hearings.
The court probate code stated that the petition notice was often published in the newspaper at least three times. There should be at least five days gap between current and prior publication.
Suppose there is no newspaper facility in the city where the Decedent resides or the Decedent’s property resides, the probate code 8121 provides alternate options. These options are detailed in California probate code 8100.
Hearing on Petition for Probate in California
Attorneys usually take care of probate proceedings, but anyone can file for Probate at any time – whether they are an attorney or not. The probate process begins with a petition. The petition is sent to the judge, who will decide if it is in order. The Court usually sets the hearing within two months after the petition filing. A petitioner must have a personal interview with this judge and explain why they should be granted Probate Powers with an Inventory and Appraisement of Assets.
The petition must be completed appropriately, all details and formalities under the California Probate Code must be satisfied (e.g., notice, publication, etc.). If no interested parties object to it, the Court will grant the petition and appoint someone as administrator or Executor.
If a Petition is submitted to a probate court missing certain elements, the probate examiner might flag procedural flaws that need resolving before the hearing date. The Petitioner will have two or three weeks before the hearing to submit a Court supplied supplement.
Request Probate Letters and Order During the Probate Process
The Court will not accept any petition to be the Executor of an estate without first having Letters, which are essentially official documents declaring one’s appointment as Executor. Those who wish to serve as Executor must approve the petition for Letters. The Letters can be “Letters Testamentary,” “Letters of Administration with Will Annexed” (if the Decedent had prepared a will), or “Letters of Administration” (if the Decedent did not have a will). The three letters serve different functions and carry with them the authority needed for the Executor or Administrator to conduct business on behalf of the estate. Financial and Tax matters require these Letters of Testamentary to verify a person is authorized to transact business on behalf of the estate of the deceased. Even though obtaining letters should be a straightforward process, don’t be surprised if there are delays and rescheduling of court hearings.
Common Objections to Petition for Probate.
Some of the common complaints include:
- One may claim priority to act as the Executor, most commonly named in the will as the Executor, called a testamentary appointment. It should not be surprising that many named as Executor may be unable or unwilling to perform their duties or they or they don’t want to be exposed to the risk of future litigation if the heirs are not happy with the outcome of the case. The Court will attempt to appoint another relative prioritized under section 8461 of the California Probate Code.
The proposed executor/administrator might be ineligible because they’re minors; they’re incapacitated persons under any conservatorship or these types of things.
The deceased’s will is invalid because it does not have certain things in it. For example, the deceased’s will does not have enough information about who should get the home, personal property, or money. There are no witnesses present to testify that the Decedent was in good health when they died.
To overcome a claim that a will is invalid, clear and convincing evidence must be shown that the deceased person knew what they were signing. If you can prove this, it is called a “settled presumption,” and the burden of proof rests with the opposing side.
How much is probate taxes in California?
Probate fees are typically 1-4% of the estates value, but it may be more depending on how large the estate it. They’re usually charged in percentages but they can also be fixed amounts. It all depends on what’s right for a specific situation.
In general, people are not familiar with the probate process in California, which can be time-consuming, scary, and risky. Probate is primarily the legal process of authenticating the deceased will; however, Probate is seen as the entire process of settling someone’s financial affairs after they have died. The Executor or Court-appointed Administrator has many duties to perform, including taking inventory of all assets, paying debts and taxes, collecting assets, settling claims, and finally distributing the remaining assets. I believe this article has given you a solid idea about the probate processes.
I always recommend filing a Petition with the help of a probate specialist lawyer who can help you navigate the probate court. They are knowledgeable about all aspects of the process, including opening up a probate court case, petitioning to open the case, and filing for the administration process. They can tell you a few shortcuts to avoid the probate processes entirely.
With help from an experienced probate attorney, you can get through this difficult time with ease. I’m not an attorney, but I work with some of the best attorneys in California and am happy to refer you to one that best meets your needs. I’m a realtor, and as a probate and trust specialist, I help Executors and Administrators sell the home once they have permission from the Court to do so. Also, I can recommend you the specialized probate attorney in San Diego, who can help you get permission from the Court. To speak with an experienced, specialized probate attorney, call me, and I’ll put you in touch with the best attorney depending on your needs. Kevin McClenahan-Realtor 858.284.7778