What is probate in California and when is it necessary?

Probate is a court-supervised process that occurs after someone dies and is for the purpose of paying creditors and ultimately distributing the deceased person’s assets to the deceased person’s heirs.  If a person dies without having created a will prior to death, assets remaining after creditors have been paid will be distributed to the deceased person’s heirs as determined by California law. If a person dies with a will, the remaining assets will be distributed to the beneficiaries (individuals or organizations) named in the deceased person’s will. Typically, the probate process takes at least nine months from start to finish, and sometimes it takes over 18 months before the estate, and the probate process, is finally settled by an order of the court.  In California, with a few exceptions, probate is necessary if a person has or has not made a will prior to his or her death.  Interestingly enough, assets held in a trust are not subject to probate, thus avoidance of probate is usually a strong motivation for creation of a revocable living trust during a person’s lifetime. Upon death, the assets in the trust avoid probate and are distributed per the terms of the trust.  It is important to note, however, that probate is sometimes required even if a trust has been created if assets were not properly transferred into the trust prior to death.

During the probate process, financial responsibilities of the deceased person must be dealt with and creditors of the deceased person’s estate must be noticed of the death and eventually paid. During the probate process, all debts and other expenses will be paid by estate assets. And when the estate is in a position to be closed, an accounting is made (unless waived by the heirs) which shows all of the estate assets, money to be paid to estate creditors, costs and fees associated with the probate process, etc. with the final amount remaining in the estate to be distributed to the decedent’s heirs or beneficiaries.

Probate Process Without a Will or Trust

Legally speaking, dying without having created a will or trust is called “dying intestate.” If the deceased person died without creating a will or trust, the probate court will appoint an administrator (also called a personal representative) to administer the estate. When a person dies without a will, the person who will serve as administrator is determined according to California law.  The administrator will follow all applicable California intestate laws to determine who will receive the decedent’s assets and in what proportions.

Probate Process With a Will or Trust

If the deceased person did create a will before death, the estate must usually still go through the probate process. Generally in California, the estate must be probated if the estate includes an interest in real property that is greater than $50,000 or the if the gross fair market value of the estate exceeds $150,000 (not including certain types of property that is not subject to probate).The difference between dying with a will and dying without a will is that the deceased person who died with a will has a say in who gets appointed as the administrator (also known as the executor) and who gets their assets rather than the assets being distributed according to California law.  Probate of an estate is typically not required in the case where the deceased person created a trust prior to their death and properly added their assets to the trust.

Once it is determined that going through the probate court is necessary, the following steps are taken to move through the probate process.

Begin a court case by filing a Petition for Probate in the county where the decedent lived. Once the petition is filed, give notice of the hearing date to those who are entitled to notice, including but not limited to, any beneficiaries named in the will and heirs at law (those would inherit per California’s intestate laws).  Notice must also be published in the local newspaper. At the first hearing, the judge will usually appoint an administrator to administer the estate unless there are objections (but that is a subject for another blog).

The administrator must then conduct an inventory and appraisal of the assets of the estate, must determine all creditors, may have to sell real property, may have to provide an accounting, may have to arrange for preparation of the deceased person’s taxes, must provide an accounting of the estate unless waived by the heirs, and must ultimately petition the court for final distribution of the assets of the estate. Once the administrator has satisfactorily completed all requirements of administering the estate, the court will order distribution of the assets and the administrator is discharged from their duties as administrator of the estate.

This blog represents a much-simplified version of the probate process. Because probating an estate is complicated, it is best to consult with a probate and estate planning attorney who can assist you through the process of administering another person’s estate, or if you would like to create a will or trust for yourself. The attorneys at Chilina Law are available to help at any stage in the probate process and creation of wills and trusts.

Authored by Karen Chilina and Co-Authored by Greg Chilina

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