When a person dies, their money and property is generally what forms their estate. This estate is required to be distributed to the decedent’s heirs according to their wishes. To ensure the estate is properly distributed, the estate must go through the probate process. Whether the estate is large or small, the California probate process requires a Superior Court Judge to oversee all probate cases. The process will take place in the county where the deceased had a primary residence. The designee in charge of managing the will has 30 days following the death of the decedent to open probate. If there is no designee, any member of the family, an heir, or interested party may start the proceedings.
The Role of the Executor in California Probate
As an executor, you have the primary responsibility of managing the assets of the deceased. Your responsibilities may include:
- Taking inventory of all assets
- Paying debts, taxes, and any claims against the assets
- Collecting any income that is due to the deceased
- Settling all claim challenges and disputes
- Working with the court on all legal matters
- Distributing assets and transfer property to all designees or heirs of the estate
Below is a step-by-step guide for following the California probate process according to California state law.
1. File the Petition with the Court
The will’s designee must prepare and file a petition for appointment with the court. The petition will name the designee as the overseer or executor of the estate and assets. Once the court receives the petition, the court’s clerk will schedule the initial hearing.
If you are the will designee (such as a surviving spouse), then make sure the petition is free of errors. It may take up to three months for the first hearing with the probate court. If there are any problems with the petition, the court may reschedule or continue the hearing for another two months.
If you have any questions about your petition or property of the estate, you should consult an experienced probate attorney in California.
2. Public Notice of the Petition
Once you file with the court, you must submit a written notice of the petition to all relevant parties including:
- Three times in an approved local newspaper
- Parties named in the will
- Legal heirs of the deceased
- Creditors of the deceased
- Life insurance providers
To save time with probate proceedings, make sure you submit the notice of petition as soon as you file the petition. Otherwise, the California probate process may take longer than is necessary.
3. Prove Authenticity of the Will
If the petition meets all requirements and no one objects to the will, the court will approve the will. If you are the petitioner, the judge will appoint you as the executor who will manage the will.
However, if you want to collect the assets and manage the estate, you must obtain a probate bond. Upon proof of a bond, the court will provide letters of administration. You now have permission to execute the will: including the collection of assets, paying debts, and administering the estate. For probate in California, bonding companies generally require executors to be represented by an attorney in order to be issued a probate bond.
4. Manage and Collect All Assets
As the executor of the will, it is your responsibility to:
- Identify all probate assets of the deceased
- Keep all assets safe and secure
- Create an inventory of all assets for submission to the court
- Disclose all probate assets as outlined in the will
Once you have identified and collected all assets, you will meet with the court’s assigned probate referee. The referee is independent of the court and acts as an objective moderator during the California probate process. The referee will also determine the value of each asset. Keep in mind that the referee is not your personal representative and you will want to maintain a good working relationship with them. Also there may be assets of the deceased that are not subject to probate, including life insurance, jointly owned property, and other estate planning methods.
5. Pay All Debts to the Creditors
In the state of California, the executor is required to provide the notice of death to all creditors. Once they receive the notice, creditors have four months from the date of the executor’s appointment to submit any claims of debt against the estate of the deceased. If they are deemed to be valid, you will then pay the debts with the assets of the estate. All valid debts must be paid before other distributions can be made.
Remember, it is in your best interest to contact all creditors. Failure to act will give them leverage to prolong the probate case so that they can recover the debt. If you submit the petition and the creditor misses the four-month deadline, they may no longer have any claim against the estate.
6. Pay Any Remaining Taxes
The executor is also responsible for payment by the estate of all the decedent’s personal and estate taxes, this includes federal and state taxes. It is a good idea to pay all taxes on the estate before distribution of any assets to heirs. If the estate has been distributed before all taxes are paid, and there isn’t sufficient property remaining to pay those taxes, personal liability may be imposed against the executor.
7. Close Out the Probate
Your final responsibility as the executor is to provide a final accounting of all actions taken by yourself as executor, and file it with the court to begin the closing of probate. The petition will also include the fee amounts due to yourself as executor, as well as fees due the estate’s probate attorney. If there are no objections, and with the court’s approval, an order will be entered by the court to close the estate. You may then distribute remaining assets to the beneficiaries pursuant to the terms of the will, as well as pay any necessary fees. Finally, advise the bond company of the closing of probate so that the bond is released.
Contact a Probate Lawyer in California Today
Probate is a technically complex legal process and you would benefit from the assistance of an experienced probate attorney. The Legacy Lawyer offers legal services that can assist with following the legal guidelines associated with the California Probate process. Our law firm can complete the paperwork, file the petition, and represent you to the court.
We can also engage with other parties who may dispute your claim as the will’s executor. To find out more about our legal services in Orange County or Los Angeles, California, call us at 800-840-1998 and we can set up a free consultation, valued at $175, and we can discuss how we can help you navigate the probate process.