Do you need to open probate?
The seven step probate process
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In California, probate is supervised by a Superior Court Judge in the county of the decedent's primary residence at the time of death.
The person nominated as executor in decedent's will must open probate within (30) days of the decedent's death.
If the will does not name a willing and able successor nominee, or the decedent died without a will, probate may be opened by any family member, heir or interested person.
The seven step process applies to all probate matters--those with wills and those without wills.
File the Petition
The nominated executor prepares and files a petition for appointment as executor of the estate and lodges the will. The court's clerk schedules the first hearing.
Prepare the petition correctly because the first hearing will occur 2-3 months after it’s filed, and the court will continue it another 2 months if there are errors.
After filing the petition, notice of the hearing must be published (at least three times) in an approved newspaper. It must also be served on everyone named in the will, the decedent's legal heirs and on all known creditors.
The first hearing will repeatedly be continued 2 months until notice is properly served on all interested parties.
Prove Authenticity of Will
If the petition and notice meet technical requirements and nobody objects, the court will likely approve the will and appoint the petitioner as executor. Upon proof of a bond, the executor will receive "letters" of administration. Only then can they collect assets, pay debts and administer the estate.
Most California bond companies will not issue bonds to executors unless they are represented by an attorney.
The executor must identify, secure, inventory and disclose probate assets. The court will assign an independent Probate Referee to assist with that process. The Probate Referee determines all asset values.
Maintain a good working relationship with your Probate Referee.
Creditors have a window of four months to submit financial claims against the estate. Valid claims are paid from the estate funds.They must be paid before distributions are made. This includes all debts, as well as funeral expenses.
Failing to give each creditor proper notice could extend their time to submit claims and prolong the probate process.
The executor must make sure decedent's personal and estate taxes are paid. Taxes are paid from estate assets.
Make sure you get an adequate reserve. If estate assets are distributed before taxes are paid and there isn’t enough money left to pay, the executor may be personally liable for the tax payment.
The executor prepares and files a final account and report of activities to close probate. If there are no objections and it is approved, the executor will pay themselves and their attorney’s compensation and distribute the remaining assets to beneficiaries pursuant to terms of the will. If there is no will, assets are distributed to heirs pursuant to rules of intestate succession.
Make sure the bond company releases the bond.