Going through probate can be a frustrating and challenging experience. However, California’s process is fairly straightforward, and compared to many other states, is actually quite streamlined. However, anyone who has been tasked with executing a will or disbursing a deceased person’s assets must still follow state law, which sets requirements and deadlines for each step of the process.
Making Sense of Probate In California
If you’ve been named the custodian of a will or are the personal representative of an estate, the steps for probate are clearly defined. In most cases, seeing a probate case from start to finish is merely a matter of filing the right paperwork—all of which is available on the California Courts webpage.
However, you may want to contact an experienced estate attorney to ensure that you don’t miss a deadline or file the necessary paperwork incorrectly. These missteps could create problems that might expose you to lawsuits and other legal claims.
Determining If Probate In California Is Necessary
You first need to determine if the estate you’re executing must go through probate court. If the decedent had no property to transfer, you may not need to take the estate through the probate process. If you have the option to avoid probate for any/all assets, you will likely want to pursue it. Although many probate cases resolve amicably, probate can be emotionally difficult and time-consuming because it:
- Exposes the decedent’s assets and heirs’ claims to public scrutiny
- May lead to conflicting claims, if prospective heirs contest any aspect of the will
- Can get expensive if there is conflicting creditor claims or vague direction in the will
Avoiding Probate In California
California, like most other states, provides residents with an array of legal tools to circumvent probate requirements for many different types of assets. They include:
- Trusts, into which a grantor may deposit real estate, vehicles, stocks, bonds, and a variety of liquid assets such as cash
- Beneficiary designations which hold transfer-upon-death clauses such as a bank account which names an heir
- Joint-tenancy agreements, in which more than one individual holds ownership in a home
- Community property with rights of survivorship, whereupon the owner’s death the property is transferred to a designated heir
However, valuable assets which are parceled out through a will may be subject to probate. If, for instance, the decedent’s personal properties are worth more than $166,250, and they are not held by a trust or subject to a transfer-upon-death arrangement, probate cannot be avoided.
Initiating Probate In California
The custodian of a will is obliged to initiate probate, although they may elect to hire an attorney to assist them. California requires that the will’s custodian appoint someone to oversee the probate process. While the custodian may take this responsibility upon themselves, complex estates may benefit from professional guidance.
Ultimately, the custodian must provide the local probate clerk with prompt notice of their intent to begin proceedings and do two things within 30 days of an individual’s death:
- Take the original will to the local probate court’s clerk
- Send a copy of the will to the estate executor, if there is one
If you are the custodian of a will, you can be sued for damages if you don’t complete these two steps within the required 30 days.
The Petition for Probate
After you’ve provided the probate clerk with notice, you will need to lodge a Petition for Probate in the same county where the person died. You can download the appropriate forms from the California Courts webpage, including:
- Petition for Probate of Will and for Letters Testamentary
- Petition for Probate of Will and for Letters of Administrations with Will Annexed
- Petition for Letters of Administration
Once you’ve filed the petition, a notice of hearing will be published at least three times in a local newspaper. You must also mail notices to everyone who was named as a beneficiary in the will, along with every other legal heir. You will also have to contact the decedent’s creditors.
Proving the Will
The next step in the process is “proving” the will. This means, the will must be shown to be valid. Wills are only legally binding if they were signed in front of at least two witnesses who ordinarily must be impartial to the will’s content.
Some wills are “self-proving.” This means:
- The will was signed by an adult who had testamentary capacity and was not under any undue influence
- The will was legally signed by both the decedent and at least two witnesses
In order for a self-proven will to hold up in probate, it must contain a self-proving clause that is signed by the witnesses under penalty of perjury.
If the witnesses did not sign the decedent’s will, they are required to create a formal self-declaration acknowledging they know the will was written or signed by the decedent. After they have written this self-declaration, they must present it to the probate court’s clerk and get it signed.
Gathering and Inventorying Assets
After the will has been proven, you will begin inventorying the estate’s assets. This process, also known as the “marshalling of assets,” is often the most time-consuming step.
To begin the inventory, you will need to take possession of the assets. You will have to obtain a tax identification number from the IRS, which will enable you to transfer the decedent’s assets into a special estate account. Along with transferring assets, you will also have to transfer any property, asset, or account titles specified in the will.
Transferable assets may include:
- Stock portfolios
- Transferable bonds
- Bank accounts or other deposited funds
- Real estate
- Motor vehicles
Gathering assets can be challenging. In addition to cars, real estate, and other common items, you may have to complete an inventory of an estate’s entire property—that can mean going through cabinets, drawers, armoires and jewelry boxes, and even email accounts. It is often helpful to keep a written or digital inventory.
Once you’ve gathered all the estate’s assets, you must see whether any creditors have made a claim and asserted their right to any of the estate assets. If any claims are determined valid, they must be repaid before you begin distributing assets to heirs. Creditors have a total of four months to submit debt claims in California.
After any credit issues have been resolved, you’ll have to ensure that any estate taxes are paid. While you won’t be held personally liable for taxes if you forget, you may be penalized by the court for not following probate procedure.
Closing the Claim and Distributing Assets
At the end of the process, you will begin to close the estate. Before you can do so, you must:
- Compile a statement documenting all the actions taken to close the estate
- Submit the same petition to the court
- Give the probate clerk copies of receipts or intended payments to be made to the estate representative or attorney, if you hired one
The court may then approve or deny your request to close the estate. But once the estate has been approved for conclusion, the estate representative may begin distributing assets to beneficiaries.
Do You Need Legal Help Regarding Probate Issues In California?
If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney 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 probate services. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.