What Is Probate and Family Court?
The probate and family court handles court matters that involve families and children like divorce, child support, child custody, and wills. If you’re looking to probate an estate, this is the court that will receive your probate petition. You can find your county’s probate court location on the California Courts website.
The family law court decides if a will is valid, figures out the heirs or beneficiaries, appraises the deceased’s property, takes care of any financial responsibilities, and transfers the deceased’s property to the beneficiaries. An executor (if there is a will) or an administrator (if there is no will) is appointed by the court to act as a personal representative. The personal representative will conduct all of the aforementioned tasks on behalf of and under the supervision of the court.
The very first step is to figure out who will be the personal representative of the estate. If a will exists, then the representative is the executor named in the will. If there is no will, then the representative is chosen based on intestate laws. California Probate Code section 8461 has a priority list for who should be the administrator, with the surviving spouse or legal domestic partner at the top of the list.
The chosen representative must be trustworthy, organized, and diligent. They must keep good records and communicate what is happening with everyone involved. They have a fiduciary duty to manage the deceased’s estate in everyone’s best interests. If they break their duty or commit violations, then they may be held personally responsible for any losses.
Filing a Petition for Probate
A petition for probate (Form DE-111) must be filed before the probate process can begin. Ideally, the executor of the will should file the petition, but there are three petition options:
- Petition for Probate of Will and Letters Testamentary: This is for when there is a will and a named executor. The executor files this petition and receives letters of testamentary, which gives them the authority to act on behalf of the estate.
- Petition for Probate of Will and Letters Testamentary with Will Annexed: This type of petition is for when there is a will, but it doesn’t name an executor. The court appoints the executor.
- Petition for Letters of Administration: This is for when there is no will. It is typically filed by the surviving spouse, children, or parents of the deceased. The letters of administration give them the authority to administer the estate.
Filling out Form DE-111 officially initiates the probate process. While the entire petition form can seem simple, it actually requires a multitude of attachments and documents. If you fail to check a box or provide incorrect information, then the court may reject your petition. That’s why we recommend consulting a legal document preparation service like A People’s Choice for assistance when filling out Form DE-111.
Steps for Probate in California
After you file the probate petition in the superior court of the county where the deceased lived, the probate clerk sets a hearing date. If the clerk approves the petition, then the county family court officially opens the probate case. The chosen personal representative has to:
- Give notice: The personal representative must give notice to all creditors and heirs about the probate proceeding. Under California law, the notice must appear three times in the newspaper. The specific requirements can be found in California Probate Code sections 19040 and 19041.
- Appraise assets: The next step is to inventory and appraise all non-cash estate matters with the help of a probate referee. This includes real estate, vehicles, investments, bonds, valuable property, intellectual property, and pets. The appraisal stage also includes identifying any debts, loans, bills, mortgages, or taxes.
- Pay debts: The representative must settle any outstanding debts and bills you identify during the appraisal process. If there isn’t enough money to pay all creditors, the representative can sell the estate’s assets to acquire more funds.
- Distribute assets: The legal beneficiaries receive what is left once the representative pays all debts, expenses, and taxes. The distribution stage involves transferring ownership of money, real property, vehicles, deeds, or bonds based on the wishes of the will or intestate laws.
The personal representative must submit all receipts and records outlining each process to the court. If everything is in order, the court closes the estate and releases the executor or administrator. Check out our article on probating a will in California for more detailed information on probate procedures.
How Long Does Probate Court Take?
Knowing all of the steps involved in a probate case, it’s easy to see why the process typically takes several months to a year or longer to successfully complete. The most time-consuming parts are:
- Determining whether a will exists and if it’s valid (several weeks)
- Appraising the deceased’s assets (1-3 months)
- Determining the heirs or beneficiaries (several months)
- Resolving all remaining financial responsibilities (1-3 months)
- Distributing what remains to heirs or beneficiaries (2-4 months)
The process also involves two hearings in probate and family court. The probate clerk schedules the first hearing when you file a petition. The scheduling for the first hearing can take between four to six weeks from the time of filing.
The second hearing is the Judgment of Final Distribution, which has a waiting period of between six months to a year after the first hearing. This is where a judge decides the final placement of the deceased’s property and officially closes the estate.
How Much Does It Cost?
One of the first questions families going through probate often ask is “How much does it cost to probate in California?” The answer depends on who you choose to help you with the process.
Probate is a lot of work, so, unsurprisingly, many families turn to a probate attorney for help. However, that can be quite costly. California’s probate code has statutory provisions that govern attorney fees, so it doesn’t matter if you hire the most expensive or cheapest attorney in town. The state gives probate attorneys a percentage of the gross value of the probated 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 million
- 0.5% of the next $15 million
Use our online California probate calculator to calculate the exact figures in statutory attorney fees you’ll have to pay. There are also additional expenses to consider, such as the court filing fee and the cost of a probate referee who will appraise and evaluate the non-cash assets of the estate. The probate referee appraises real estate, vehicles, valuable collectibles, household furniture, business-related property, and stocks and bonds. Their fee is equal to 0.1% of the total value of the estate assets.
Don’t let the potential cost of probate discourage you; in almost every case, the deceased’s estate pays for the cost of administering probate. The court will reimburse any out-of-pocket costs when closing the estate.
Affordable Assistance is Available
The good news is hiring a probate attorney isn’t the only way to get help! You can choose to administer probate and deal with family court services on your own. You can later reimburse yourself for all upfront costs. Estate executors also receive the same statutory payment as probate lawyers.
If you need affordable assistance at any point of the process, you can hire a legal document preparation service. While legal document assistants can’t offer you advice on family law, they can assist you with filing the required paperwork at a fraction of the cost of a probate lawyer.
Contact A People’s Choice for affordable help with your probate case. Our team of professional legal document assistants can guide you through the process for a flat one-time payment. We’ve helped hundreds of people successfully complete probate in California. Contact us today to start your probate case!