The probate process is a complex legal process with many decisions to be made along the way. Whether you are an executor of a will or an administrator without one, it is important to understand your duties and responsibilities. Knowing critical loopholes can help speed up the process and prevent unnecessary delays.
The process can be overwhelming and tedious. Legal mumbo jumbo and lots of rules only add to the confusion.
Basics
If you’ve lost a loved one and are the designated Executor of their estate, you must clearly understand how to do probate in California. Probate is a Court process that manages the Decedent’s assets and distributes them to their beneficiaries.
The size of the estate determines whether or not probate is required. Even if the estate is small, collecting all the assets and settling outstanding debts takes time. Then, the Executor must liquidate the remaining assets and distribute them to beneficiaries.
During this process, it is important for the Executor to obtain receipts for all expenses and assets and to make sure all creditors are paid. Ultimately, the Judge will review a final report from the Administrator and verify that the administration was handled properly.
Depending on the type of probate (a “formal” probate can last 9 to 12 months), costs can be very high. These fees can include a percentage of the estate’s value, court fees, appraisals, charges for certified copies of documents, legal fees and a bond (if applicable). The prices payable to an Executor/Administrator and their attorney are statutorily defined.
Documents
When someone dies, settling their estate can take months or even years. While this may seem overwhelming, it is important to understand that the probate process typically runs more smoothly when an Estate Plan is implemented.
The first step is filing a petition with the court. This petition requests a hearing to appoint an estate representative. This could be the Executor named in the estate’s Will or, if there is no will, an administrator appointed by the court.
A petition can also request a bond for the estate. This insurance policy pays heirs/beneficiaries the estate’s value if there are any disputes or creditors who successfully challenge the validity of the will or the Executor’s/administrator’s actions. The estate must pay the bond premium, or the Executor/Administrator can waive it.
Creditors must be notified of the estate’s administration and have 30 days to file a claim against the estate. This is accomplished by serving them with a “notice of proposed action” under California Probate Code SS 10580 – 10592.
Notices
When a loved one dies, their estate must pass through a specific process to ensure they are distributed appropriately to the Decedent’s heirs. This process is called probate and is governed by state law. There are various types of probate, and the time frame varies depending on how complicated the estate is, whether or not the Will is contested, how much debt exists and more.
During probate, the Executor/Administrator is responsible for sending notifications to known creditors and publishing a notice to all unsecured creditors in a local newspaper to allow them to file a claim against the estate. Depending on the type of probate, the Executor/Administrator can be granted full, limited, or no authority.
We understand that grieving the loss of a loved one is stressful enough, and adding legal mumbo jumbo to the mix can only add to the gloom. This is why we make probate as simple as possible and break it into easily digestible chunks.
Court Dates
When someone passes away, their assets must be passed on to their heirs through probate. Probate is a court-supervised process that ensures estate assets are properly distributed according to instructions in the deceased person’s Will or California’s intestacy laws when there is no will.
The first step is to file a Petition for Probate. Once the petition is filed, you will be given a court date to hear your case. This is typically 16-20 weeks after the initial filing date.
During this hearing, the Judge will sign an “Order for Probate.” If you are appointed the Executor/Administrator of the estate, they will also grant you letters of testamentary or administration. This will determine if you have full or limited authority to take certain actions and whether or not you need to obtain a bond.
Most courts require personal representatives to obtain a bond to protect interested persons (such as beneficiaries and creditors) from mismanagement by the representative during the probate proceeding. The bond amount is fixed by the court and is based on the estate’s value.
Attorney Fees
The legal mumbo-jumbo associated with probate can add to the stress of dealing with the death of a loved one. Probation is a formal process, and it is time-consuming. It also involves a lot of paperwork and, in many cases, meetings with the courts to get permission to sell property or pay taxes.
Probate attorneys charge for their services and follow the statutory fee schedule outlined in California Probate Code sections 10810-10814. The fees are based on the gross value of the estate.
Other costs can include notice of death publication fees, probate referee fees and escrow fees for real estate sales during probate. The personal representative (or Administrator if there is no will) must post a bond, which can be expensive and may require credit checks. The IRS treats these fees as income, so they should be carefully considered. An experienced probate attorney can minimize these fees. Upon completion of the probate process, the personal representative will receive the “Letters” (Letters Testamentary if there is a Will; Letters of Administration if there isn’t). This allows them to take control of the estate and to present evidence of authority to banks and government agencies.
