When someone dies, that person's estate (their property at death) may have to be administered through the court. This process is called probate. 2 factors help determine whether a full probate case is necessary:
- Did the decedent set up a trust and transfer the property into the trust prior to death? If so, the trust can generally be administered outside of court supervision. If not:
- Is the estate valued at over $150,000? If so, then a full probate will be required, whether or not the decedent had a will. (If the value is $150,000 or less, there are simplified probate procedures that may be available.)
In probate, the person in charge of administering the estate is the personal representative. They might also be called the “executor” (if named in the will) or “administrator” (if not named in the will, but appointed by the court). Probate usually takes at least 9 months, but can last well over a year, depending on the circumstances.
Generally, these are the steps involved in probating an estate:
- File the will with the court: If there is a will, whoever is in possession must file the original with the court within 30 days of the death of the decedent. This person must also send a copy to the executor if they can be located, otherwise to a beneficiary named in the will.
- Petition for probate: Whoever wants to get the process started needs to file a petition for probate and other necessary forms in the appropriate court.
- Hearing date: The court will set an initial hearing date.
- Notice to those involved: The petitioner must provide notice to potential beneficiaries and certain surviving family members.
- Appointment of personal representative: The court will appoint someone as personal representative to be in charge of the estate administration.
- Marshalling the assets: The personal representative marshals (gathers) the assets, has them appraised, and files the Inventory and Appraisal with the court.
- Notice to creditors: The personal representative gives notice to creditors, allowing them a chance to make a claim against the estate.
- Payment of debts and taxes: Estate debts are paid. This includes filing a final personal income tax return and an estate tax return, if necessary.
- Final distribution: After reporting to the court and providing an accounting of estate assets, the personal representative files a petition for final distribution. Once the court approves, the property is distributed and the personal representative is discharged from his or her duties.
These are the general steps. Depending on the nature and complexity of the estate, there might be more to do. If there is a will, assuming everything goes smoothly, the property will generally be distributed according to its terms. If there is no will (the person died “intestate”), the property will be split up and distributed according to California inheritance laws for intestacy.
Both the personal representative and the personal representative's attorney are entitled to a statutory fee for their services. This fee is calculated as a percentage of the value of the estate. The personal representative is responsible for all court dates, filing deadlines, and other court rules. If the probate administration is mismanaged, the beneficiaries could sue for damages.
Disputes are common in probate cases, and they are one of the major causes of delay in completing the administration of the estate. A beneficiary who feels cheated by his or her share, a disinherited heir, or someone who suspects fraud or undue influence in the will's execution might decide to contest the will.
Sometimes there are competing testamentary instruments (i.e., 2 parties have a different will executed by the same decedent and feel the other document is not valid). Additionally, the beneficiaries may have a dispute with the personal representative over the handling of the estate. For the personal representative, handling the administration correctly can help reduce the chances of a dispute.
Probate is a long process with multiple opportunities to make mistakes. Adherence to deadlines and court rules, as well as managing the assets wisely and keeping the beneficiaries informed, is crucial to the success of the administration.
Helix Law Firm can guide you through the probate process
Whether you've been appointed as personal representative and need help probating the estate, or you're a beneficiary and want someone to look out for your interest, we can help relieve you of the burden of probate.