What Is Probate?
Probate is a legal process of distributing a deceased person’s assets per their last will and testament. Probate not only carries out the final wishes of the deceased; it also makes sure their debts are paid. If there is no will, then the state distributes the assets according to intestate succession laws.
The court first appoints an executor (if there is a will) or an administrator (if there is no will) to manage the estate. If no relative of the deceased steps up to become the estate executor, the court appoints an administrator instead.
The chosen personal representative appraises the deceased’s assets, determines if there are any outstanding debts or expenses, and identifies all eligible beneficiaries. In exchange, they receive a percentage of the gross value of the estate assets.
All of this is a lot of work, which is why the entire probate case can sometimes take years. There is a chance of it being even longer if the estate is large or complex, or if the beneficiaries contest the will.
What if someone dies without a will?
That’s when intestate succession laws kick in. The state has a list of priority candidates who can be the administrator. Naturally, the deceased’s surviving spouse or legal partner is at the top of the list. Next are parents, children, grandchildren, and so on.
Sometimes, it can be difficult to appoint an administrator. There might be more than one person (e.g. two children) with the same priority, or relatives may have disagreements. In such cases, the court makes the final decision.
What Is the Probate Process in California?
The first step to initiate a probate case is to file a Petition for Probate form with the superior court in the deceased person’s resident county. There is typically a court filing fee of $435, but some counties can charge more. A fee waiver is available for families in need.
The court validates the will (if there is one) by having witnesses sign a sworn statement and chooses a personal representative. Once everything is in order, the court issues letters of testamentary that give the representative authority over the estate. It is at this point that the inventorying and distribution of assets can begin. The personal representative needs to establish a filing system and open a bank account for the estate. They also have to file an inventory of all probate property and send formal notice of the probate proceedings to any beneficiaries.
The representative does not have to do all these duties at once. Most probate cases are handled under California’s Independent Administration of Estates Act, which allows the representative to handle most matters without the court’s permission. The paperwork can be challenging, but you can always get help from a legal document preparation service or a probate attorney.
What Are the Duties of the Personal Representative?
If the court accepts your probate petition and chooses you to act as the personal representative, then you need to keep up with your responsibilities and communicate efficiently with all beneficiaries in the probate case. The duties of the representative include:
- Collecting any assets and death benefits where possible, including checking safe deposit boxes
- Inventorying the probate estate and identifying outstanding debts
- Collecting the deceased’s mail
- Canceling credit cards and managing digital assets
- Notifying the tax board and the Social Security Administration
The personal representative has several other responsibilities as well. Their job is to basically safeguard the probate estate until the court can pay off creditors and distributes what remains to beneficiaries. They have a fiduciary duty and are responsible for all asset safety, so they should set an insurance policy for valuable assets, such as real estate. They are also responsible for filing tax returns for the estate and publishing newspaper notices to alert creditors about the probate proceedings. After all outstanding expenses are paid, the representative can distribute the remaining assets to beneficiaries, then ask the court to formally close the estate.
Quick Breakdown of Probate Steps
Here is a quick breakdown of the probate steps:
- Notify interested parties: The representative must notify beneficiaries and potential heirs of the will. They must also place an advertisement in a newspaper published near the deceased’s residence to notify potential creditors. In California, creditors have four months to come forward with any claims.
- Manage the property: The representative must make a list of assets and liabilities. This includes any asset in other people’s hands. They also need to hire an appraiser to find out how much the property is worth.
- Pay valid creditor claims: The estate pays for all valid claims from creditors, including any outstanding funeral expenses. The representative is not responsible for any of the deceased person’s debts.
- File tax returns: The deceased person’s tax forms must be filed within the time frame set under the law. These taxes include income taxes and estate taxes.
- Distribute assets to beneficiaries: Once all creditor claims are clear, the representative is responsible for making sure the beneficiaries get their fair share under the law. This includes creating a trust fund or conservatorship if that is what the deceased wanted.
- Keep accurate records: It is extremely important to keep accurate records of every step. The personal representative must perform a final accounting for beneficiaries to review before probate ends.
- File the final accounting: The final step is to file the final accounting. If the final accounting receives approval from the beneficiaries and the court, the probate court holds a final hearing to close the estate and release the personal representative.
What Assets Must Go Through Probate?
Dealing with estate assets can be challenging. Managing smaller items may be simple, but determining who inherits bigger assets, such as real property and stock portfolios, can get complicated. The good news is not everything has to go through probate, and it is possible to avoid probate altogether!
Assets that go through probate include:
- All separate property or assets in the deceased person’s name alone that were inherited or acquired outside of marriage.
- Half the deceased’s community property. Community property refers to assets acquired during marriage. The other half belongs to the deceased’s surviving spouse.
Examples of assets that are distributed outside the probate process include life insurance benefits, living trusts, retirement benefits (401(k), IRAs, etc.), payment-on-death (POD) bank accounts, and property held by joint tenants.
California also has simplified probate procedures for transferring estates worth $166,250 or less. If you have the legal right to inherit the estate, then you may NOT have to go to court! You can instead write an affidavit requesting the transfer of the deceased’s personal property within 40 days of their death.
Do You Need A Probate Attorney?
Do you need to involve probate lawyers? It depends on the circumstances of the case. A standard probate case mostly deals with paperwork. It involves filling out forms that are available for free on the California courts website, so hiring a probate attorney isn’t necessary unless there are disputes.
Attorney fees are another consideration. The California Probate Code has stipulations for probate attorneys fees. The statutory amount is a percentage of the gross value of the estate property, which can be significant.
If you do need assistance, a more affordable alternative is to use a legal document preparation service like A People’s Choice. Legal document assistants are much more affordable and charge a fraction of California attorney fees.
Get Affordable Help With Your Probate Case
Probating an estate through a superior court may sound difficult, but it can be done without a probate lawyer. The California courts website even has a self-help section for probate that can guide you through each step of the process.
If you do need help at any point, consider hiring a legal document assistant. A People’s Choice can help you navigate probate and complete it in record time. Our team of legal document assistants knows all the steps of the probate process. Let us lighten your burden while saving you time and money. Call us today to start!