Probate Without a Will
When someone dies without a will, their estate is distributed to their next of kin based on California’s intestate succession law. It outlines who inherits what among the deceased’s loved ones and makes sure a surviving spouse gets their fair share.
If there is no spouse or children, the law breaks down the order in which any living parents, siblings, grandchildren, and other relatives inherit. In the rare event that the deceased doesn’t have any surviving loved ones, their estate will escheat, or revert, to the State of California.
Intestate succession laws vary from state to state. You can read a summary of California’s laws here.
Probate With a Will
If the deceased died with a last will and testament, the court distributes their property based on their wishes. However, the court will first make sure the will is valid before following its instructions. This is also the step in the process wheere anyone who wants to contest the will can come forward so that the court can decide the matter.
Even if there is a will, a surviving spouse is still entitled to the share of the estate. The amount they inherit varies by state. California is a community property state, which means barring a separate agreement, one-half of the property gained during marriage (i.e., community property) belongs to the surviving spouse.
The Probate Process in Six Steps
The personal representative of an estate is typically named in the will. But if there is no will, then the state probate court will pick an executor among the deceased’s surviving loved ones. Assuming you’re the executor, below are the steps you should take to complete probate.
Step 1: File a petition
The very first step is to file a probate petition in the county where the deceased lived. You can make a request in the petition to be officially recognized as the legal executor or administrator of the deceased’s estate.
In addition to the petition, you need to file the will (if one exists) and the death certificate. The county court will then schedule a hearing to approve the executor or hear objections from other parties. If your application is approved, the court will officially open the probate case, and you can start the process of closing the estate.
Step 2: Give notice
The executor has to give notice to all creditors, beneficiaries, and heirs that the estate is undergoing probate. Some states require a notice to be published in the newspaper. In California, a notice of a person’s death and the probate of their estate must be published three times in a newspaper before the court hearing to give potential heirs the chance to come forward. There must be at least five days between the first and last publication dates. The specific requirements can be found in California Probate Code Sections 19040 and 19041.
Step 3: Inventory assets
Next, you must identify and appraise all the estate assets and provide a valuation of those assets. That includes bank accounts, cash, investments, real estate, vehicles, intellectual property, personal property, bonds, and pets. It excludes assets owned by a trust, such as a living trust, and the payout of a life insurance policy. Those assets don’t have to go through probate.
Identifying everything may require some sleuthing; you may need to go through checkbooks, emails, and /or bank account details to gather the necessary information. Taking inventory also includes any outstanding debts, loans, mortgages, bills, or taxes. Once the notice to creditors is published, claimants are given a time frame to file their claims against the deceased person. All debts must be tallied and disclosed to the court.
Step 4: Pay bills and debts
After all of the estate’s debts are identified, they must be paid for using the estate’s assets. The executor is tasked with collecting any money owed to the estate, such as outstanding paychecks and rent. They also have to review the outstanding bills and debts and decide whether or how they are paid.
You also have to pay all applicable taxes and file a final income tax return on the estate. It’s usually a good idea to set up an estate bank account for paying the various final bills and expenses.
If there isn’t enough cash available to pay all the creditors, then you can sell the estate’s assets to get the required funds. If there still isn’t enough money, the state will prioritize creditor claims over any distributions.
Step 5: Distribute assets
Once all claims, debts, taxes, and expenses are paid, whatever remains goes to the deceased’s rightful heirs. The distribution can go according to the will (again, if there is one) or follow state intestacy laws.
Distributing estate assets may require transferring ownership of vehicles, bonds, or real property via titles or deeds. If the deceased wanted to create a trust fund, then you have to set one up based on the instructions in the will.
Step 6: Close the estate
After everything has been distributed, the final step is to perform a final accounting of the estate. You must submit all receipts and records outlining everything you have done to the court. That’s when the estate can finally be closed. The court will then release you from your role as executor, and your job is officially done!
Considering all the steps, it’s not really surprising that the whole probate process can take several months to a year or longer depending on the size of the probate estate. Successfully closing an estate requires attention to detail and a methodical approach.
The Cost of Probate in California
Seeing all the steps in the last section may leave you wondering: how much does probate cost in California? The answer depends on who you choose to help you with the process.
Using a probate attorney will cost you a percentage of the gross value of the probated estate, in addition to an hourly rate. California’s probate code has statutory provisions that govern attorney fees. The percentages are:
- 4% of the first $100,000 of the gross value
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9 million
- 0.5% of the next $15 million
Use our online California probate calculator if you want a specific amount. It will give you the exact figures in statutory attorney fees you’ll have to pay.
Attorney fees are just one piece of the puzzle. There are also court filing fees, costs of publishing notices, and executor’s fees if the court appoints one. The latter is why it’s always a good idea to have a family member probate the estate to save costs. You may additionally need to pay for an accountant if the estate is complex. Probate isn’t cheap, but some routes can make the process affordable.
Can You Probate a Will Without an Attorney?
Yes, you can! It is possible to probate a simple estate without hiring a probate attorney. You may even be able to avoid probate completely or use California’s “small estate” probate process if the estate is valued at less than $166,250. Estates of that size can be settled without formal probate proceedings.
You may need the assistance of a licensed attorney if the estate is extremely complex. An attorney can help you get through the process faster and deal with any problems that may arise. However, in many cases, a legal document assistant is more than enough to make sure your paperwork is in order.
Need Help? Hire a Legal Document Assistant
Not only can probate be a huge headache, but it could also end up costing you a bundle. The process has a reputation for lasting forever, even after you meticulously file the mountain of required paperwork. If you don’t feel confident about going through the probate process on your own but also don’t want to go through the hassle of hiring an expensive probate lawyer, consider using a legal document assistant.
A People’s Choice is here to help you navigate the probate process and make informed decisions on what to do after a loved one dies. Our highly qualified team of legal document assistants can provide you with all the guidance you require for a flat one-time payment. We’ve helped hundreds of people successfully complete probate in California. Contact us today if you have any questions!