Understanding California Probate and Probate Alternatives
What does probate mean? California Probate is a legal proceeding required to settle a deceased person’s estate, paying all debts of the decedent, and distributing the property to the heirs and beneficiaries. When a Living Trust holds the title to some of the decedent’s property, however, that property can pass to the beneficiaries without going through probate. A court probate of a will, depending on the size of the estate, can be expensive and time-consuming. The probate process varies dramatically between states, but can be completely avoided with proper estate planning.
It’s easy to start your Probate Case. Complete our easy interview in 15 minutes and we will do the rest! Our flat fee services will save you thousands of dollars as compared to hiring an expensive probate attorney. Let’s get started…
California Probate FAQs
You start the probate proceeding by filing a petition and supplemental preliminary documentation required, with the clerk of the Superior Court in the county where the decedent resided at the time of his death, no matter where he died or left property. The person requesting to be appointed the estate representative files the probate petition. That person is called the petitioner.
Estates that have a gross value of over $166,250 (effective 1/1/2020) of personal property (assets consisting of cash, stocks, and tangible personal items) normally require probate. Any estate that includes real property worth more than $55,425 (effective 1/1/2020) requires probate, however there are small estate proceedings that can be used to settle estates having real property valued under $166,250. These alternative proceedings can be completed much quicker and are less expensive than the full probate process. Keep in mind that these values are gross estate values and do not take into account any debts that are owed on the property.
In California, there are several alternatives to the full, formal probate. Some of these are:
- If the total gross value of a deceased person’s personal property does not exceed $166,250, a non-court affidavit procedure may be used on behalf of the beneficiaries to avoid a “full” probate.
- If the gross value of a decedent’s real property does not exceed $55,425, a simplified court affidavit procedure can be used on behalf of the beneficiaries to avoid “full” probate.
- If the surviving spouse or registered domestic partner is heir to all or part of the decedent’s estate, they may file a special spousal property petition to avoid formal probate. This method is faster and less expensive than formal probate.
If there are no unusual problems, a typical California probate proceeding can be concluded in approximately seven to twelve months. Due to crowded court calendars, hearings are often held six to ten weeks after the initial probate petition is filed. After Letters of Administration are issued, there is a mandatory four-month creditor claim period. There may be other delays in getting a probate referee assigned, completing the inventory and appraisal, dealing with creditors, resolving tax issues, or will contests that could delay the probate for even longer periods.
The estate representative (executor or administrator) represents the estate in a court proceeding. If there is a will which names an executor, that person is the estate representative. If there is no will (the decedent died intestate), the court will choose the estate representative who is called an “administrator.” If there is a will but no executor has been named or the person named is unable to serve, the court will choose the estate representative who is called an “administrator with will annexed.”
California Probate Code Section 8200(a) requires that the original will be filed with the court in the county where the person who dies resided within 30 days after the person’s death. Unfortunately, this statutory requirement is rarely complied with. In fact, in most cases, the original will is only lodged with the court if the estate requires to be probated.
If you know that there is a will and it is not filed with the court, then you should contact an attorney to determine what your options are.
Probate is not an inexpensive process in California. There are several small estate probate proceedings that are reasonably inexpensive to undertake. A full probate, can run several thousand dollars in fees and costs, even when you do it yourself.
Filing a probate with the help of an experienced probate legal document assistant is the cheapest way to navigate the California probate process. Attorneys are able to charge statutory attorney fees based on the value of the estate. These statutory fees are based on the gross value of the estate, not the net value. Use our probate calculator to determine what the statutory attorney fees would be for an estate. This calculator will also show the savings when you use A People’s Choice to help you with the probate proceedings.
There are many third-party costs associated with filing a California probate proceeding. These costs are in addition to professional document preparation services or attorney fees should you hire a professional to help you.
A typical estate may incur $1,000 to $2,000 in court costs and other mandated fees. A list of common third-party costs in a typical full California probate are as follows:
- Court filing fee for initial Petition: The current court filing fee for a Petition for probate is $435.00 for most courts. Many courts also charge an additional court reporter fee of $30.00. The counties of Riverside, San Bernardino and San Francisco charge slightly higher fees.
- Lodging Will – Most courts charge a fee of $50 to lodge the original will.
- Newspaper publication – The fee charged by each newspaper varies. Sometimes there are several choices of newspapers that are proper for publication, allowing a person to shop around for the cheapest one. Other times, there may be only one choice. The average fee for publication is $250, however with smaller newspapers, the fee can run as high as $600-$700.
- Certified copy of Letters – approximately $25 per certified copy. A representative should get 2-3 certified copies of the issued Letters.
- Probate Referee – The probate referee is the person who appraises the assets of the estate. They are allowed to charge statutory fees of .01% of the gross value of all assets they appraise. In addition, they can charge nominal fees for mileage and copies.
- Court filing fee for Petition for Final Distribution – This fee is the same as for the initial Probate Petition, currently $435.00 for most courts. Many courts also charge an additional court reporter fee of $30.00. The counties of Riverside, San Bernardino and San Francisco charge slightly higher fees.
- Certified copy of Order – Approximately $25
- Recording Fee – Approximately $30-$50.
The executor or estate’s personal representative has a duty to administer the decedent’s estate. Administration of the estate includes locating the decedent’s assets, managing the assets to prevent losses, paying bills for the estate, filing necessary tax returns, preparing an inventory of the assets, locating heirs and beneficiaries, and other duties. The role of the executor or personal representative is to tie up all the loose ends of the decedent’s financial affairs and to distribute the estate to the beneficiaries.
A quick reference list of the duties of the executor or personal representative include:
- Take possession of all estate’s property insofar as practicable. Joint tenancy property, life insurance proceeds, and retirement plan benefits (unless payable to the estate) are not included in the property under the jurisdiction of the probate court;
- Collect all dividends, interest and other income, and deposit all such items in an interest-earning estate bank account (or accounts) until the estate is closed;
- Keep a detailed statement of all your receipts and disbursements for the estate; List the date, source, and amount of each receipt and the date, nature of payment, and amount of each disbursement;
- File all tax returns and pay all taxes. You may want to consult with a tax specialist in this regard; and
- Keep estate property adequately insured. You should consult with an insurance specialist in this regard.
Anyone who winds up a deceased person’s affairs must see that all legitimate debts are paid. Claims are received two ways – formally and informally.
At the formal level, the Notice of Petition to Administer Estate published in the newspaper gives legal notice to all creditors to file their claims within four months after issuance of the letters. In some circumstances, however, a creditor may file a claim after the four-month period has expired. Claims must be filed with the court and served on the personal representative, or the claims will be invalid. In addition, written notice must be given within four months after letters are issued to all known or reasonably ascertainable creditors and you must continue to give notice as you become aware of new creditors.
Informal claims are made when bills come to the decedent’s last address. Probate Code §10552 allows you to pay the debts at your discretion without court approval or without requiring a formal claim if you have independent administration authority. In addition, when there has been a written demand for payment, Probate Code §9154 allows you to pay debts incurred by the decedent before death within 30 days after the claim period ends without requiring a formal claim, unless for some reason you dispute the amount or legitimacy of the debt.
As an estate representative, you are entitled to compensation for services, referred to as “commissions” which are paid out of the estate assets. You may request or waive the commissions in the Petition for Final Distribution. The amount of commission is based on the gross value of the probate estate as follows:
|4% of the first||$100,000|
|3% of the next||$100,000|
|2% of the next||$800,000|
|1% of the next||$9,000,000|
|½% of the next||$15,000,000|
|“reasonable amount” for everything above||$25,000,000|
If you are the sole beneficiary, it is probably unimportant whether you claim the commissions or not since you will receive all of the estate anyway. However, if there are several beneficiaries and you have done all the work, you may want to discuss whether you will claim or waive the commissions with the other beneficiaries. If commissions are paid to you, they are treated as taxable income and you must report them on your personal income tax return.
Assets that are solely in the name of the decedent are generally probate assets. Assets that can transferred through pay-on-death provisions are not considered probate assets. For example, if an asset is owned in joint tenancy (but not if it is owned in tenancy in common) or there is a named beneficiary designated to receive the asset after death of the owner, these assets are not part of the probate state. When pay-on-death designations have been made, the asset avoids probate. All other assets are part of the estate and must be probated in California if the total value exceeds $166,250. If there is a surviving spouse, however, a formal probate can usually be avoided with a spousal property petition.
If a person dies without a will or trust, their estate will be distributed according to California intestate succession laws. Generally speaking, intestate succession laws in California state that a person’s estate will be distributed in the following order:
3. Parents (if you have no children)
4. Siblings (if you have no children or parents)
Additional information regarding intestate succession can be found here.
This is a question that clients regularly ask just before their scheduled hearing. In probate cases, there is typically a court order that is issued by the court based on the outcome of the hearing. In this regard, if the Order can be lodged with the court before the hearing, we will do so. Unfortunately, not all courts allow documents to be lodged pre-hearing. Therefore, we recommend that clients print and take a copy of the proposed Order and have it available to submit to the court. In addition, since courts may not necessary process the order “on the spot” it is helpful to have a self-addressed, stamped envelope available as well for the court to use to send the filed order back to you.
If you are filling a full probate case and this is your first hearing in the matter, the court will issue “Letters.” Keep in mind Letters are ONLY issued in full probate cases, not small estate matters or spousal proceedings. As with the Order, you will want to have a copy of the original, signed Letters and self-addressed envelope to submit the court for processing if the Letters have not been pre-lodged with the court.
It is always important to keep A People’s Choice informed as to any filed paperwork you may receive from the court. Therefore, upon receiving issued “Letters” or a filed “Order,” you should forward a copy to our office by email.
In most instances, a certified copy of the Court Order will be required. Therefore, if the court does process the Order at the hearing, you should go to the Court Clerk’s Office and get a certified copy of the Order as well as a certified copy of the Letters (in full probate cases.)
Letters can be more easily understood as being the estate representative’s “proof of authority” as the estate representative in a probate proceeding. Letters Testamentary are issued to the estate representative when the decedent had a will. Letters of Administration are issued when the decedent did not have a will. Letters are issued by the Court clerk and are sort of like the representative’s “Driver’s License” in a probate proceeding. Letters can be presented to banks and other entities that demand court proof that the person has been granted court authority to act on behalf of the decedent and their estate.
Letters are issued to the estate representative after the first hearing. It is the responsibility of the estate representative to go to the Court Clerk’s office after the Order for Probate has been signed by the Judge and filed to get several certified copies of the Letters. The representative will be required to provide a certified copy of the Letters to banks and other entities to substantiate their authority as estate representative and administrator.
After Letters are issued in a California probate, there is a four-month waiting period before the estate may be closed and distributed, during which time the creditors are allowed to file their claims. During this time, all bank accounts in the decedent’s name should be transferred to estate accounts in your name as the estate representative. All money received during the probate process should be deposited into the estate checking account and expenses of administration such as court costs and publication fees should be paid from the estate account. Detailed information should be kept about each deposit.
In larger counties, after a petition is filed, someone from the court examines the probate petition before the hearing to see if it is complete and conforms to certain requirements. Notes and notations are made by the examiner several days before the hearing. Often you can access these probate notes on line through the court’s website.
If the notes indicate that additional information is required or corrections should be made, you may prepare a supplement to the petition providing the necessary information and file it before the hearing. It is quite common for the probate notes to reflect deficiencies or request additional information that requires the filing of a Supplement to the Petition. Sometimes there is adequate time to address the probate notes prior to the scheduled hearing.
Whether the case is filed by an attorney or a petitioner in pro per, only about 20% of all probate cases filed are approved on the first hearing.
Although only about 20% of all probate filings get approved at the first hearing, if your case is one of the lucky ones and all goes well, the Order for Probate will be approved. At that point, the Court Clerk can issue the Letters. “Letters” is the document of authority that starts the probate timeline and gives the personal representative the authority to manage the assets of the estate and do their other duties.
If there are deficiencies or requested supplemental information that are not able to be addressed prior to the court hearing, the court will continue the matter to a future date to allow a supplement be filed. This is quite common, and a Petitioner should not be alarmed when this happens in their case. It is important, however, to pay particular attention to what deficiencies or other information the court is being requested. You can then relay this information to the person assisting you with your probate paperwork, assuming you are representing yourself in the case.
Ideally, if the court approves the Petition, the Petitioner should get a conformed and file-stamped copy of the Order for Probate and well as several certified copies of the Letters immediately after the hearing. Keep in mind, however, Letters are only issued in full probate. Letters are not issued in small estate proceedings or spousal property proceedings.
The Letters and the Order for Probate are essential, and every effort should be made to get them as soon as possible. In addition to getting a file-stamped copy of the Order, we suggest getting 2-3 certified copies of the Letters, as well. Keep in mind, however, that some courts do not issue the Order for Probate at the hearing. In this regard, the court will mail a copy of the Order several days after the hearing. Unfortunately, the Court Clerk cannot issue the Letters until the judge signed the Order for Probate. As you can see, this delay prevents the personal representative from getting certified copies of the Letters when they are at the hearing. When this happens, it may be necessary for the personal representative to return to the court after they receive the filed Order for Probate in the mail to pay for and order certified copies of the Letters from the Court Clerk.
A “probate referee” appraises certain assets in the estate as of the date of the decedent’s death. After the Order for Probate is signed and the referee appointed by the court, the estate representative is responsible for preparing the inventory of the assets subject to probate for the referee to appraise. This is done on an “Inventory and Appraisal” form with attachments describing the assets owned by the decedent that are subject to probate. The completed Inventory form is sent to the probate referee who will appraise the assets listed on the attachments, place values on the inventory schedule and return for filing with the probate court. Sometimes it is possible to have the court waive appraisal by a probate referee.
A probate bond is an insurance policy for associated parties of the decedent should the executor breach a fiduciary duty while administering the decedent’s estate during probate.
The bond’s size generally correlates with the estate’s size. For example, per Probate Code § 8482(a)(1)-(3), “the court in its discretion may fix the amount of the bond, but the amount of the bond shall be not more than the sum of:
- The estimated value of the personal property.
- The probable annual gross income of the estate.
- If independent administration is granted as to real property, the estimated value of the decedent’s interest in the real property.”
A bond is not required in the following situations:
- The will waives bond. Prob Code §8481(a)(1). It should be noted that the court may require bond even though the will waives the requirement of bond if:
- All beneficiaries in writing waive bond and the will did not require bond or there is no will. Probate Code §8481(a)(2).
- A trust company is appointed executor. Probate Code §§83, 301(a).
Usually property cannot be distributed to minor unless a guardian has been appointed for the minor’s estate. There are some exceptions, however, if the amount to be distributed is small, the decedent’s will names a custodian to receive the minor’s property or the minor has a court-appointed guardian.
If there is no appointed guardian, and the decedent did not nominate a custodian to receive the minor’s property but the total estate of the minor (what the minor already owns plus what they are inheriting) does not exceed $5,000, then money or other personal property being inherited by the minor may be delivered to a parent of the minor. They can hold it in trust for the minor until they reach age 18.
If the minor has no guardian of the estate and the decedent did not nominate a custodian, but the property to be transferred does not exceed $10,000 in value, the personal representative may, under certain conditions, designate another adult as custodian. These conditions are:
- The personal representative must believe the transfer is in the best interest of the minor
- The will must not prohibit the transfer or contain provisions inconsistent with the transfer.
If money is to be distributed to a minor, the court may order that the money be deposited in a bank account, subject to court supervision.
Most representatives will need to open an estate bank account after probate has been filed. Once you open an estate bank account, decedent’s savings and checking accounts, if any, are typically transferred into the estate’s name. In order to open an estate bank account, you will need to present a certified copy of the Letters to the bank. Letters will be issued to you after the initial hearing when the court issues the Order for Probate.
Cash and uncashed checks in the possession of the decedent at the time of his death, and subsequent receipts should be deposited in the estate checking account. Any estate creditor payment should be made by check. Personal representatives should not commingle their own funds with estate funds. Substantial amounts of estate funds should not be kept for any appreciable period in the estate checking account. Instead, funds not required for current expenditures and distributions should be kept in an interest-bearing estate savings account.
The probate estate may be closed any time after the expiration of the creditor’s claim period (four months from the date letters are issued) if all debts and taxes have been paid or sufficiently secured, and no problems prevent the estate from being closed. In order to close the estate, the personal representative must file a Petition for Final Distribution. If the court approved the Petition, the estates assets can be distributed to the heirs or beneficiaries.
Court Call is a service that allows parties in a court case to appear at their scheduled hearing by the phone. If you are unable to personally attend the hearing as scheduled, some courts allow you to appear by phone through CourtCall. CourtCall is a service that allows parties to appear at a hearing by phone and serves Courts and Judges, throughout the United States, Canada and worldwide. Appearing through Court Call is not an option in every county nor with every type of legal proceedings. A Judge’s listing on the CourtCall website does not necessary guarantee that CourtCall Appearances are allowed on all matters and deadlines for scheduling do vary. Each Court and Judge listed will include details on whether video, audio or remote interpretation services are available, participant fees, and whether online scheduling is available. Therefore, you should check with the court to make sure that appearing through Court Call in your particular matter will be permissible. To arrange an appearance through Court Call, visit their website to see if your case is being heard at a participating court. You will need to register your account and let the court know that you intend to appear at your hearing using Court Call.
A waiver of accounting is a voluntary waiver by all heirs and beneficiaries that eliminates a very time-consuming and expensive accounting process by the Personal Representative. In order for a probate estate to be closed, the court requires the filing of a petition for final distribution. When the petition for final distribution is filed, the court requires a detailed accounting of all the monies and other items received and all monies paid out during the probate administration. The accounting, however may be waived when all persons who are entitled to receive property from the estate have signed a written waiver of accounting. Preparing an accounting is time-consuming, expensive and unnecessary when all the beneficiaries are in agreement. Most importantly, the waiver of accounting simplifies the closing of the estate.
A People’s Choice requires that all beneficiaries and heirs sign a waiver of accounting in probate matters we handle.