2024 How Does Probate Work in California?

If your loved one has recently passed away, you may be wondering, “How does probate work in California?” The probate process can be daunting, particularly if you do not know where to start. However, understanding the basics of the process can make a significant difference in how efficiently and smoothly an estate is managed.

What Is Probate?

Probate is the legal process for settling a recently deceased person’s estate. This is meant to ensure that their wishes are carried out and their will is administered fairly and according to the law. Probate also gives a structured process for resolving any disputes and paying outstanding debts. The process is overseen by the court and may take months to several years, depending on how complex the estate is.

An Overview of the Probate Process

If the person passes away testate, meaning there is a valid will, it should include an administrator, also called an executor, of the estate. This person is legally responsible for leading the legal process, which includes:

• Filing the petition. The first step for the administrator is to file a petition in the county where the decedent lived at the time of their death. The court will schedule a hearing regarding this matter.
• Publishing and mailing the notice of hearing. Once a hearing date is set, the administrator must publish a notice of the upcoming meeting in the local newspaper at least three times. Everyone named in the will, any legal heirs, and potential creditors must also be mailed a copy of the hearing notice.
• Posting a surety bond and the first probate hearing. A surety bond is typically required before the court issues documents that grant the administrator the legal authority to administer the estate. The bond is to make sure that the administrator will execute their fiduciary responsibilities.The cost of the bond can be claimed as an expense and be reimbursed once the estate is executed. If a bond is required and then secured, the court will officially designate the administrator during the first probate hearing.
• Proving the will. To prove a will in court, the administrator will show that the will was signed and dated by the descendant in front of two witnesses. Usually, this is a straightforward process and is often just a formality, as long as everything is in order and there are no disputes.
• Asset collection and accounting. Before any assets can be distributed to creditors or beneficiaries, they need to be carefully accounted for. The administrator must gather all the assets that are part of the estate and create a detailed inventory. This list should include the value of each asset at the time of the descendant’s death and its value when it eventually goes to the heir.In most cases, the court will either appoint a Probate Referee or require the administrator to find one to professionally value any non-monetary assets.
• Creditor payments. Creditors may submit a written claim against the estate for any unpaid debts. California does require creditors to submit their claims within four months after the administrator is appointed.
• Second hearing. If everything has proceeded as planned, the judge will make a final decision on the distribution of the estate during the second hearing.
• Payment of fees and taxes. The administrator must ensure the estate and personal income taxes, along with accounting fees and federal and California taxes, are paid on time. If the administrator fails to do this, they may be held liable for additional fees.
• Closing of the estate. To close the estate, the administrator must provide a complete and final accounting report of their actions. This means filing a petition to the court, where a hearing will be scheduled for the report to be presented to the judge. The judge will review whether everything was handled correctly, look over records and receipts, and ensure the beneficiaries received their assets.

Once the judge is satisfied that all the aspects of the probate process have been properly handled, the court will discharge the administrator of their duties.

The Role of a Probate Attorney

Since probate can be a complicated and lengthy process, many people find it helpful to work with a probate lawyer. They can help guide you through the entire process, make sure you meet all the legal requirements and deadlines, provide emotional support, and help sort out any disputes that may come up.

FAQs

Do All Estates Have to Go Through Probate in California?

No, not every estate in California must go through probate. For smaller estates valued under $166,250, simple transfer processes can often bypass probate. Additionally, trusts can help an estate avoid probate. However, if there are disputes among beneficiaries about the assets, probate will probably be required to resolve them.

How Long After Death Do You Have to File Probate in California?

In California, the probate process should be initiated within 30 days after a person’s death. This is when the administrator of the will is required to file a petition with the local court to request to open probate formally. Probate can take several months to over a year to complete, so filing as soon as possible is recommended.

Can I Probate an Estate Without an Attorney?

Yes, you can probate an estate without an attorney, but it can be difficult if you do not know California probate laws. Working with an attorney is a smart choice to avoid legal issues. Probate can come with many unexpected hurdles, and preparing ahead with legal support can take some stress off you and your loved one’s shoulders.

What Happens if a Person Passes Without a Will?

If a person passes without a valid will in California, their estate is distributed according to state intestacy laws. This court will appoint an administrator to handle the estate, and assets are divided among the surviving family. This begins with spouses and children, surviving parents, siblings, or other distant relatives. If no relatives are found, the estate may go to the state.

Experienced Probate Attorneys Can Assist You With Probate

Understanding the complexities of probate in California can be overwhelming, especially if you are also grieving the death of a loved one. Our compassionate and experienced probate attorneys at Sakamoto & Ruelas, APC, can provide valuable support and guidance to make the probate process more manageable. Contact us today to set up a consultation.