What is probate in California (and when is it required)?
Probate is a court-supervised process used to transfer assets to heirs after someone dies. Assets are collected and valued, debts and expenses are paid, and then the remaining assets are distributed to the right people.
Probate is usually required when someone owned assets in their name alone. It typically is not required if assets were owned in a living trust, in joint tenancy, in a title granting rights of survivorship, or with a beneficiary designation.
Probate also may not be required if the total probate estate value is below certain thresholds.
What does the California probate court process look like - step-by-step?
Most estates follow a similar path:
- A petition is filed.
- Required notices are sent to certain parties.
- The court appoints a personal representative (an “executor” if there is a will, or an “administrator” if there is no will) and issues Letters of Authority.
- Assets are identified and valued (often including formal appraisals).
- Debts, expenses, and taxes are handled if applicable.
- The court approves distribution by a final order, and the estate is closed.
What are the problems with probate, and why do people try to avoid it?
There are numerous reasons why it is best to avoid probate, even in some states where the process may not be as complex or burdensome as California.
First, probate is expensive. Costs can include court costs, attorney fees, executor fees, appraisals, and more. Total costs may range several percentage points of the value of the estate.
Second, there are delays involved. Probate takes time, and heirs can suffer financial hardship or conflict can arise during this needless waiting.
Third, there is considerable paperwork complexity. If there is property such as real estate in more than one state, heirs likely will face separate probate proceedings in each state (often called “ancillary administrations”), which can significantly add to cost and time delay.
Fourth, probate is completely public. Some unscrupulous businesses and individuals monitor probate proceedings to obtain financial information or target families and beneficiaries with scams or bogus lawsuits. The public process can also make it easier for unwanted third parties (such as ex-spouses, in-laws, and would-be creditors) to contest the estate.
Frequently Asked Probate Questions
What assets go through probate in California (and what assets avoid probate)?
Generally, assets titled in the decedent’s name alone with no beneficiary designation go through probate.
Assets that commonly avoid probate include assets properly titled in a living trust; accounts with named beneficiaries (like retirement accounts, annuities, and life insurance); and certain forms of joint ownership or ownership with right of survivorship.
Also avoiding probate are certain so-called “pay-on-death,” “transfer-on-death,” or “in trust for” bank or securities accounts.
Assets go through probate depending on their title and beneficiary paperwork, not necessarily on what someone intended or as may have been stated in a will.
How long does a probate take in California?
A common range is about 9 to 18 months. It can be shorter, but rarely less than 4 to 6 months.
It often can be longer, depending on court calendars, the number of assets, the complexity of the assets (like businesses), real estate issues or sales, creditor claims, tax matters, and family conflict.
Contested cases (over who is in control as executor or who gets what and when) can take significantly longer.
How much does probate cost in California (and how are executor fees and attorney fees determined)?
Probate costs can include court filing fees, publication of notice fees, appraisal or valuation costs, executor bond premiums (if required), and executor, attorney, and other professional fees.
With respect to determination of executor and attorney fees, California often uses a statutory fee schedule for ordinary probate services, but additional fees may apply for extraordinary work (for example, running a business or real estate, selling assets, special court petitions and appearances when issues arise, or litigation).
Is probate needed in Los Angeles County if there is a Will?
Many people think the purpose of a will is to avoid probate, but the opposite is usually true.
Think of a will as instructions to the probate court judge about who should be in charge and who should inherit probate assets.
Whether probate is required depends on what assets exist, how they are titled, and whether they pass outside probate (for example, in a living trust or through joint tenancy, survivorship title, or a beneficiary designation).
A will is intended to guide the probate process — it does not prevent it.
Is probate needed in California if there is no Will?
Probably, if there are assets which must pass through probate (as explained above) and be re-titled into the names of heirs.
When there is no will, California “intestate succession” rules (based on the degree of family relationship to the decedent) determine who inherits, and the court appoints an “administrator” to be in charge (instead of an “executor”).
What’s a Pour-Over Will and how does it affect probate?
When a living trust is established, it is usually accompanied by a pour-over will.
Its purpose is as a backup: if the trustmaker dies with assets in his or her own name, it directs the probate judge to “pour over” those probate assets into the trust at the end of the court process.
It does not avoid probate, but it does make sure that assets will then pass to the heirs or beneficiaries named in the trust, in the manner directed by the trust, without further court involvement.
Does a Living Trust avoid probate in California (and when does probate still happen even with a Living Trust)?
A properly drafted and funded living trust (with assets properly titled in its name) will usually avoid probate.
However, probate can still be needed when significant assets are not transferred into the trust (either when it was established or as assets were later acquired), beneficiary designations on certain assets are missing or incorrect, or there are other complications.
A common situation where probate occurs is when a living trust exists, but was not fully funded with all the decedent’s assets.
What if there is both a Living Trust and a Will—can the probate process somehow be shortened?
Yes, if there is proper written evidence that the deceased person intended to transfer assets to the trust, which never was completed.
If this can be proven to the satisfaction of the probate court judge, then the probate may in some cases be ended quickly (in what is called a “summary probate”), and the assets then placed into the trust by court order.
The trustee of the trust would then be able to take over and handle matters quickly according to the trust terms, avoiding further court involvement.
Can there be both a probate and a separate Trust Administration going on at the same time? Can the Trust Administration be held up until the probate is completed?
Assets properly titled in (or payable by beneficiary designation to) the decedent’s living trust are handled by the trustee of the trust in accordance with its terms, usually without court involvement.
Often, depending on the facts of the estate, the trust administration can take place more speedily than the court probate process.
However, if assets are not held in the trust or payable to it at the decedent’s passing, some or all of those assets may need to go through probate before they can be transferred to the trust.
A lengthy probate process may hold up distribution of some or all of the trust’s assets.
How do you file for probate in Los Angeles County?
Probate typically starts by filing a petition in the county where the decedent lived (such as Los Angeles County).
You file the petition, a hearing date is set, and required notice is given to interested persons.
If the opening petition is approved, the court issues Letters authorizing the executor or administrator to act for the estate.
What’s the difference in California between an executor and an administrator?
An executor is nominated in a will and then his or her appointment is confirmed by the probate court.
An administrator is appointed by the probate court when there is no will (or no living, named executor who is able to act).
Both serve as a personal representative of the deceased person and generally have similar duties: to gather assets, manage them, pay valid claims, keep records, and distribute to the right people.
Their job is virtually the same — the appointment process is what is different.
What are Letters Testamentary and Letters of Administration in California probate?
“Letters” are formal court documents that prove someone has legal authority to act for the estate — collect assets, deal with third parties and institutions, manage property, and in general move the case forward.
Banks, securities firms, escrow and title companies often require Letters before they allow access to assets or allow withdrawals or transfers.
Obtaining Letters is a major milestone because it grants the executor (or administrator) legal authority to act and allows the probate process to proceed right away.
What are the executor’s duties in a California probate?
Executors (and administrators) typically locate estate documents, secure property, obtain Letters, identify and value assets, address creditor issues and taxes if applicable, pay expenses, keep accurate records, and request court approval to distribute assets.
The executor or administrator is a “fiduciary” who has strictly prescribed duties and responsibilities under the law. He or she can face personal liability if tasks are missed, not done timely, or done wrong.
Does the executor have to post a probate bond in California?
Sometimes. A bond is protection for the estate in case assets are mishandled.
A will can waive bond, and some circumstances can reduce or avoid it, but not always.
The court decides whether a bond is required, and if it is, the premium is usually paid from estate funds (subject to court rules).
How are debts and creditors handled in a California probate?
Probate includes a formal process for dealing with creditors and debts.
The estate must follow notice and claims procedures, then pay valid debts in a legal priority order.
In most cases, beneficiaries receive inheritances after debts, expenses, and other required or related costs and fees are addressed.
Paying the wrong expense or debt too early, or distributing assets before expenses and debts are handled, can create problems and personal liability for the executor.
Are heirs responsible for the deceased person’s debts in California?
Usually not. Heirs are not personally responsible unless they co-signed or have independent legal liability.
Debts are generally paid from estate assets through the probate process (or trust administration if there is a living trust and probate assets pour over into it at the completion of the probate process).
Care must be taken to timely notify creditors of the probate and pay legitimate claims; otherwise, beneficiaries may later be required to return distributions so debts are paid.
On the other hand, the executor may be held liable if the executor pays a debt not properly proven to be valid.
When do beneficiaries get their inheritance in California probate?
Distribution typically happens at the end of probate, after assets are gathered and valued, expenses and debts are paid, any creditor issues handled, and required court approvals are obtained.
Partial distributions to beneficiaries may sometimes occur earlier, but they depend on the need to retain assets for estate liquidity and expenses, and as otherwise determined by the court.
Can a Will be contested in a California probate?
Yes. Common grounds may include someone’s undue influence over the decedent when the will was signed, the decedent’s lack of capacity at the time, fraud, or improper execution of the will.
Contests may also occur when beneficiaries disagree with the executor’s actions or proposed actions.
Deadlines for contests can be short, procedures are highly technical, and contests can significantly extend the length of a probate and increase its costs.
If you suspect a potential dispute, want to file a contest, or want to prevent one, you should get legal advice and, if appropriate, act as early as possible.
Do I need a Los Angeles County probate lawyer or attorney, or can I handle the probate myself?
In very small estates or other rare cases, you may handle probate yourself, but it is not generally advisable because probate has strict notice, filing, and accounting requirements, and mistakes can cause delays or result in personal liability out of your own pocket.
Many families hire legal counsel to streamline the process and reduce the work and stress involved, especially when there is real estate, multiple heirs, creditor issues, or potential conflict.
At least, seek an initial consultation early with an experienced, qualified probate attorney so you can avoid expensive mistakes and family problems.
How do I choose the right Los Angeles County probate attorney or lawyer?
This is indeed a critical choice. There are a number of questions you should ask when selecting the attorney. Check out our “How to Choose a Los Angeles County Probate Attorney.”
Kavesh, Minor & Otis — Trusted Estate Planning And Probate Attorneys In Torrance and Serving the Greater South Bay
If you need legal help with an estate or trust issue you should speak with an experienced estate planning or probate lawyer as soon as possible. Contact us online or call our office directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our estate and trust administration services. Our estate planning law firm proudly serves clients throughout California from our main office in Torrance, as well as those in Redondo Beach, Manhattan Beach, Hermosa Beach, El Segundo, Rancho Palos Verdes and the Greater South Bay area.