Losing a loved one is a trying time for family members and close friends. One thing that can complicate this even more is not knowing what to do with the money and property that they left behind. It can be problematic trying to interpret a will. It can be even more difficult to understand what happens if there is no will. Who will inherit leftover money? Who will get ownership of the property? How will outstanding medical bills be paid? What do you do about outstanding loans or taxes?

To make sure that these questions are answered correctly, contact The Legacy Lawyers. We will help you understand what probate is in California and we can help you through the probate court hearing process.

What are the key terms you should know for the probate process?

Probate is a legal process that settles your loved one’s estate according to their will or applicable law. It is a set of court supervised steps that ensure any money or property left behind is distributed appropriately. There are several other key terms you need to know:

  • Decedent: The deceased person
  • Decedent’s estate: The money and property the decedent has left behind
  • Will: Legally binding document that was signed by the decedent prior to their death that outlines their wishes for their estate
  • Beneficiaries: Individuals who will inherit property
  • Executor: Individual appointed in the will to act as a personal representative of the estate
  • Administrator: Individual appointed by the court to act as a personal representative of the estate
  • Real property: Generally, land or homes attached to land
  • Personal property: Generally, movable property not attached to land

I need to go through the probate process. What are my next steps?

If you need to go through a probate court hearing, there are several steps you will need to take. Having a lawyer guide you through your probate case will make the process less difficult and get you results faster.

1) File the Probate Petition with the Court

The first step in the probate procedure is to file a petition with the appropriate superior court where the decedent lived. If there is a will, this petition is usually filed by the executor. If no executor is assigned or there is no will, the petition can be filed by other possible beneficiaries.

After this is filed with the court, a probate examiner will usually be assigned. This is a court staff member who will do the preliminary work on the decision to grant or deny the petition. If there are no major objections, a probate court hearing will be scheduled within the next 5-6 weeks.

2) Initial Probate Court Hearing

A judge will decide on whether to grant an Order for Probate. It can be common for the judge to ask for a continuance on the hearing where the case will be reviewed again later. This usually happens when there are deficiencies in the information given or the judge requests supplemental information.

Once a judge signs and grants the Order for Probate, the County Clerk will issue the Letters of Administration. These “Letters” are one of the most important parts of the probate process. The judge may also require a bond on the personal representative to ensure that they do not cause any negligence to the decedent’s estate.

The “Letters” establish the timeline for the rest of the probate process. They also recognize the legal personal representative of the estate. If there is a will, the representative is usually executor. If there is no will or the executor declines to be the representative, the judge will appoint one. In California, the representative has no legal authority until they are recognized by the probate court.

3) Responsibilities of the Personal Representative

Generally, the judge will explicitly state the responsibilities of the personal representative at the initial probate court hearing. These duties include, but are not limited to:

  • If there is a will, contact all beneficiaries listed and give them notice of the probate process.
  • Contact all known creditors. A “Notice to Creditors” form is sent and the representative also usually publishes a notice several times in a newspaper to alert possible unknown creditors.
  • Gather and appraise all the decedent’s assets. This means that they will need to compile an inventory and monetary assessment of all probate property.
  • Pay all creditors. In California, they have four months to make a claim after notice is filed in the newspaper. Often no claims are made, and the personal representative just pays off any outstanding bills that were found during the asset gathering stage. This includes all outstanding medical bills.
  • Pay all taxes. While there are no California estate taxes, there may be federal estate taxes that need to be paid.

4) File a Petition for Final Distribution

Once the personal representative has completed all the steps above, they will file a Petition for Final Distribution. A second court hearing will be scheduled, usually, 9 to 12 months after the whole probate process was started.

5) Second Probate Court Hearing

The judge will decide if all the items in the timeline have been met. The judge will also check to make sure that the personal representative performed all their duties correctly and that all known creditors and taxes have been paid. If the judge is satisfied, they will sign and issue the final order to close the estate and make distributions to the heirs. Once this happens, the executor can distribute all remaining assets to beneficiaries and the estate will be closed.

Do you always have to go through the probate process?

No, in California you do not always have to go through the probate process. Some of these situations include:

  • If there is a living trust
  • Having a small estate
  • If designated beneficiaries are listed in life insurance and retirement accounts
  • If there was a joint tenancy, the joint tenant will get full ownership
  • If there was a Transfer on Death Deeds or Right of Survivorship, the surviving spouse would not need to go through the probate process

How can Legacy Lawyers help me?

There are already so many difficulties when dealing with the death of a loved one. Don’t let confusion about their estate or probate proceedings add to your pain. Contact us today to get started and learn more about the probate process in California.