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Probate Process
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Understanding The Probate Process In California
When an individual passes away, the legal process known as probate comes into effect. This court-supervised procedure involves the distribution of the deceased person’s money and assets, collectively referred to as their estate, to their rightful heirs. The primary objective of probate is to prevent fraudulent claims by ensuring that only those with the lawful entitlement can access the deceased individual’s property. Due to this purpose, the probate process is often intricate and not mandatory for all estates. If you find yourself in the probate process, we can help. Contact our dedicated Newport Beach probate lawyer at Finn Legal Group to learn more about the next steps.
The Probate Process In California
Estates valued at $166,250 or higher require settlement through probate. In California, the probate process is simplified and follows the following steps:
- File for probate and send out notices
- Court hearing and letters testamentary
- Make an inventory of the decedent’s property
- Paying all creditors and taxes
- Close the estate and distribute all assets to the heirs
Filing For Probate And Sending Notices
Probate is initiated by filing a petition with the California Superior Court in the county where the deceased individual resided at the time of their passing. This serves the purpose of requesting a court hearing to appoint an estate representative. If a will exists, it must be submitted along with the petition.
In the case of a will, the estate representative will be the executor designated therein. However, if there is no will, the court will appoint an administrator for the estate. There is a specific order of individuals, as dictated by statute, who may be appointed as estate administrator. This order begins with the surviving spouse or domestic partner, followed by others on a designated list.
In certain situations, the identity of the administrator may not be clear, such as when two individuals share the same priority according to the statutory list. If you have any concerns or questions regarding this matter, it is advisable to consult with an attorney.
Upon filing the petition for probate, it is necessary to publish a notice in the local newspaper. This notice aims to inform potential creditors about the probate proceedings. Additionally, everyone named in the will (if applicable) and other legal heirs of the deceased must be notified.
Court Hearing And Letters Testamentary
During the hearing, the court appoints either the executor or administrator and assesses the validity of the will (if one exists). Additionally, the court verifies proper notice was sent and determines the rightful heirs of the decedent.
Upon the hearing’s conclusion, assuming all is in order, the court issues letters of testamentary (or letters of administration). These letters grant the estate representative the authority to carry out specific duties on behalf of the estate, including the preservation of the decedent’s property and assets.
Making An Inventory
The next step entails the executor or administrator creating an inventory of the portion of the deceased’s estate that falls under probate. It is important to note that not all assets owned by the deceased will require probate, such as a life insurance policy with a designated beneficiary.
Both real and personal property subject to probate must be organized and identified meticulously in what is referred to as the inventory. Additionally, debts need to be identified. Once the assets are appropriately inventoried, a neutral appraiser is enlisted to assign a value to each item. Subsequently, the inventory and appraisal are returned to the estate representative, who then files them with the court.
Throughout this process, the estate representative also has other obligations, including notifying the Social Security Administration in the event that the deceased is receiving monthly payments. It is imperative that the estate representative consistently acts as a fiduciary, thereby instilling trust in their ability to manage the estate in the best interests of all parties involved.
Paying Creditors And Taxes
Before the decedent’s property can be distributed, it is crucial to settle all valid debts. In California, creditors typically have a four-month window, starting from when the estate was opened for probate, to file their claims. Once a creditor submits a claim to the court, the estate representative will either fulfill the debt or challenge it. Additionally, the executor or administrator holds the responsibility of ensuring timely payment of all estate taxes.
Closing the Estate and Distributing Assets
Once all debts and taxes of the estate have been settled, the representative proceeds to file a petition with the court to formally close probate. This petition provides a comprehensive account of all activities related to the estate, including any applicable fees for the representative and estate attorney. Upon the court’s approval of the accounting and absence of any objections, an order is issued, effectively concluding the estate. At this stage, the remaining assets are distributed to the rightful heirs, and any necessary fees are duly settled.
Frequently Asked Questions
When Is Probate Required In California?
In most cases, a California Probate is necessary, with only a few exceptions:
1. The Decedent was a California Resident;
2. The Decedent owned property in California; and
3. No “exemption” exists to avoid a probate.
How Long Does The Probate Process In California Normally Take?
In most counties in California, it typically takes around 8 months to complete a formal probate process. This includes 2 months to schedule a hearing for the appointment of an Executor/Administrator, followed by 4 months for creditors to file claims, and another 2 months to hold a hearing for the final distribution approval.
However, even a seemingly “simple” probate case, with minimal assets, controversies, creditors, and taxes owed, often takes around 10 to 12 months. In certain counties where a limited number of judges handle numerous probate cases, the process may extend even further.
In contrast, a more complex probate case involving a deceased person with substantial assets, creditors, heirs/beneficiaries, unknown heirs/beneficiaries, pending lawsuits, or significant tax liabilities, can last for several years.
How Much Does Probate Cost In California?
In addition to the direct expenses associated with probate, such as filing fees, publication expenses, probate referee fees, and the costs of maintaining and safeguarding the assets of the deceased during the potentially lengthy duration of a formal probate, there are also fees that may be paid to two parties involved in the formal probate process.
- The Executor/Administrator; and
- His/her attorney.
These parties may receive 2 types of fees:
- Statutory fees; and
- Extraordinary fees.
The fee payable to the Executor/Administrator, as well as their attorney, is legally prescribed. This implies that the probate attorney fees in California can be identical for all executors/administrators. In particular, each party may be entitled to a fee that is equivalent to:
- 4.0% of the first $100,000 in asset value;
- 3.0% of the next $100,000 in asset value;
- 2.0% of the next $800,000 in asset value;
- 1.0% of the next $9,000,000 in asset value;
- 0.5% of the next $15,000,000 in asset value; and
- For estates larger than $25,000,000 in asset value, the fee to the Executor/Administrator is determined by the Court.
In recognition of exceptional services rendered to the estate, such as those that go above and beyond the routine duties typically fulfilled by an Executor/Administrator/attorney, the Court has the authority to grant extraordinary fees. These fees are commonly calculated based on an hourly rate and serve as a testament to the exceptional efforts involved in managing the estate.
What Is The Probate Process For Small Estates?
As previously mentioned, estates valued under $166,250 typically do not necessitate probate proceedings. Instead, they can be handled through a simpler process known as “summary probate.” It is important to note that there are additional regulations and qualifications that apply. Therefore, it is highly recommended to seek guidance from a knowledgeable probate lawyer in Newport Beach, CA to determine your eligibility for this alternative approach.
Contact Our Newport Beach Probate Lawyer Today
Estate representatives are entrusted with numerous responsibilities that require timely, diligent, and comprehensive execution. The complexities of probate can be overwhelming, even for the most organized and responsible executors and administrators. That’s why it’s crucial to consult with our experienced Newport Beach probate lawyer at Finn Legal Group. Our dedicated team is committed to providing exceptional legal services, specifically tailored to assist you with any trust and estate matters. Take the first step towards resolving your concerns by contacting us today to schedule a consultation.