California Probate: An Overview
California probate can be difficult and stressful to handle on your own, which is why an attorney should be by your side. But it’s helpful to learn the basics.
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Introduction
Dealing with the passing of a loved one is emotional and painful. Grief can fill our hearts and our minds – shoving legal matters aside. Before you know it, you may find that a probate case has been opened to handle the distribution of the deceased’s estate. This is a very common process, yet many people don’t always understand.
Looking for a shining light in the situation? While some states have a lot of hoops to jump through, California’s probate process is rather painless. And, after losing a loved one, knowing this can be a bit of a relief.
If you find yourself in the middle of a probate case, you may be left scratching your head and wondering how it works and what you need to do, if anything. You’ve already got enough on your plate. So, let’s reduce your burden by taking a look at an overview of California’s probate process.
California Probate: Defined
If you find yourself here, there is a good chance you are trying to understand the process. And, to do so, you need to know what probate actually means.
In a general sense, this is what probate is about:
- Discovering whether a will exists. And, if it does, determining whether it is valid.
- Determining the worth of the assets.
- Clearing up any financial responsibilities of the deceased, such as outstanding debts or tax liens.
- Transferring the property to the beneficiaries (as stated in the will) or heirs (as determined by California law).
Of course, you should know that there are a couple of key players, such as an executor as listed in the will. Or an administrator if there is no will. This personal representative of the deceased is selected to perform the duties of administering an estate while under the supervision of the Superior Court. As well as a probate attorney that can help with the preparation of legal documents, filings, court appearances, and more.
The California probate process is not overly complicated – if you know what you are doing. That’s why having someone on your side who has the expert knowledge to give you legal guidance along the way can make sure things run smoothly. After all, it is not uncommon for probate cases to go from what should be simple into a complex case.
General Steps in the Probate Process
The specific steps that each individual will follow will vary based on personal circumstances. However, as an overview of the process, here are the general steps that are followed in the probate process:
Step 1: Filing the Petition. A Petition for Probate is filed with the Superior Court located in the county where the deceased resided.
Step 2: Notice of Hearing. Once the petition is filed, the court will set a hearing within approximately 30 days or so. A notice of this hearing will be published (at least 3 times) in the local newspaper. In addition, this notice of hearing will be mailed to all parties listed in the will. If there is no will, then all legal heirs will be noticed.
Step 3: Notice to Creditors. Because the probate case is designed to pay back debts, all creditors will be given notice of the opened petition for probate and the upcoming hearing.
Step 4: Validate the Will. If there is a will, it will be important to validate it and prove that it is real and legal. There are various ways in which this is done – and legal counsel can provide guidance in determining the validity.
Step 5: Inventory the Assets. The personal representative of the estate will collect all assets of the deceased that are subject to the probate case. If these assets are to be transferred to someone else, such as a beneficiary or heir, then the representative needs to handle this. For example, bank accounts, investment accounts, motor vehicles, and real property.
Step 6: File List of Assets with Court. A list of these assets is compiled and often appraised by the court.
Step 7: Creditors’ Claims. Creditors who have submitted claims for payment from the estate. If the claims are determined to be valid, they must be paid first. Creditors have 4 months to submit their claims.
Step 8: Estate Taxes. Next, all estate taxes need to be paid, including both federal and state taxes.
Step 9: Closing the Estate. This is when the representative presents the court with an accounting of all actions taken. Another petition will be filed – this one showing all of these actions. Also, any fees to be paid to a probate attorney or the personal representative will be included. As long as there is no objection by the court, an order will be filed to conclude the probate case and close the estate.
Step 10: Distribute Remaining Assets. All remaining assets will be distributed to heirs and beneficiaries.
Keep in mind that these are just the general steps for a probate case. In reality, these cases are not always going to appear this simplistic. Issues may arise, leaving you with a more complex estate to handle.
Property Not Subject to Probate
If you are going to handle someone’s estate, it is a good idea to familiarize yourself with the assets that are not subject to probate. As we stated above in step 5 above, the personal representative is to gather an inventory of all assets subject to probate.
Which leaves us with the question – What property is not subject to probate? Below is a list of the most common.
- 401k or an IRA with a designated beneficiary or beneficiaries.
- Property owned in a Living Trust, as “joint tenants with right of survivorship,” or “community property with the right of survivorship.”
- Life insurance policies.
Final Thoughts
Losing a loved one is tough. And, having to work your way through probate doesn’t make things any easier – especially when that simple process turns into a more complex case. Enlisting the help of a probate attorney can give you peace of mind by allowing you the opportunity to focus your energy on grieving your loss rather than making an inventory of assets and paying out debts.
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