How California Probate Works
Probate is a series of steps. A personal representative (a family member or relative) must come forward and start the probate process. The probate court will appoint an executor to get the ball rolling. If there is no will, then a family member or relative can ask the court to be appointed administrator of the estate.
The executor’s job lasts for 6 to 12 months. First, the personal representative files the will and a document called “Petition for Probate” with the probate court in the county where the deceased person lived. Most counties typically charge a $435 filing fee. Formal notices will provided to the deceased person’s surviving heirs. The court must prove the validity of the will. The witnesses who signed the will must sign a sworn statement for the court.
Final Probate Steps
Once everything is in order, the court issues “Letters of Administration” that formally appoint an executor and grant that personal representative authority over estate assets. The personal representative can now start the process of organizing, gathering, and appraising the assets of the estate owner.
The executor also has to pay final bills, taxes, and outstanding debt. Creditors in California have four months to come forward with any claims against the owner. If there isn’t enough money to pay all valid claims, state law sets out the order in which claims are to be paid from estate assets. The executor can ask the court to close the estate once all bills and taxes are paid. This is the stage when they can distribute what remains to the deceased person’s legal beneficiaries.
All this may sound overwhelming, but luckily, you don’t have to do it all at once. Again, it’s a series of steps. While probate does involve a lot of paperwork, the executor can always get help from probate attorneys or a legal document assistance service.
How to Speed Up Probate in California
Several legal shortcuts can let spouses and families avoid probate court in California. Probate isn’t always necessary, and avoiding it can save you time, money, and hassle. Here are some ways you can speed up probate:
- Spousal property petition – A surviving spouse or registered domestic partner can have community property transferred to them through the Spousal Property Petition. Community property refers to assets gained throughout the marriage. The spouse must still submit the petition to the probate court for approval, but the process is much faster.
- Small estate affidavit – Small estates valued at less than $166,250 can skip probate altogether. The inheritor simply prepares an affidavit stating that he or she is entitled to the estate.
- Simplified probate procedures – Small estates don’t have to go through full probate. They can instead go through simplified probate procedures. The beneficiary of the estate can file a petition with the superior court in the county where the deceased person lived or where the property is located. This option is only available to estates that are worth less than $166,250. The beneficiary must include a copy of the will and the executor’s written consent in the petition to use this process.
Avoiding Probate Altogether
There are also methods that can help you avoid probate. However, they require the estate owner to have taken action before their death. These include:
- Setting up a living trust – Living trusts are an alternative to a last will and testament. You place your assets and real property “in trust” and appoint someone to manage it on behalf of your heirs. Your beneficiaries will gain access to the the assets in the trust after your death.
- Payment on Death (POD) designation – A POD designation lets you appoint an heir of your bank accounts or stocks and bonds in the event of your death. Your chosen heir can skip probate and gain access to your bank accounts immediately after your passing.
- Transfer on Death (TOD) deed – You can use TOD deeds to transfer your real property to your heir after your death. For example, you can make deeds for your car or real estate, and your beneficiary will automatically inherit them after your death.
Get Help With California Probate
Probate in California has one big drawback: extremely high attorney fees. Attorneys in California typically charge a “statutory fee” for probate work—an amount that is a percentage of the value of the assets that go through probate. The percentages are set out in California Probate Code § § 10810 and 10811. In practice, probate attorneys charge fees that are much higher than the amount of actual work done.
The good news is you don’t need to hire a lawyer to setle a probate estate. Probate is usually a matter of filing fill-in-the-blank forms. There is no trial and there may be no court appearances at all. Executors can handle probate themselves as long as there are no unusual complications such as disputes over inheritance.
If you do need guidance, consider hiring a legal document assistant. Our team of experts can take you through the entire probate process. We can provide step-by-step instructions for all required forms for an affordable flat fee.