Category: Probate
Probate, a word that strikes fear and dread into the hearts of many, is the process of administering a deceased person’s estate under court supervision.
Especially in California, probate can be a long and drawn-out process. Although certain steps can be taken to ensure that probate becomes shorter where possible, the first thing we advise is to familiarize yourself with the different stages of probate. By understanding the different stages of probate, you will better understand the different requirements of you and your probate attorney in every stage of the California probate process.
First Stage of Probate - Petitioning for Probate and Appointing a Personal Representative
The first stage of probate is filing the petition for probate with the appropriate county probate court. The documents required to be filed may vary depending on the county court. The documents include information regarding the deceased, their will (if one existed at the time of death), and their remaining family members.
Once the initial documents have been filed, the court will schedule a hearing date. Once the probate hearing date is known and before the hearing, the attorney or the proposed personal representative must file certain documents to any known heirs and beneficiaries of the deceased.
The initial probate hearing is for the court to appoint a personal representative to administer the deceased’s estate.
How does the court choose the personal representative?
If the deceased left a will naming the person in charge of administering his will (known as the “Executor”) and that person is content to fulfill that role, the court will appoint the named Executor as personal representative.
However, suppose no will exists or no proposed executor is willing or able to take on the role of the personal representative. In that case, other individuals may petition to become the personal representative according to a prioritized list in the California Probate Code Section 8461.
Second Stage of Probate - Letters, Creditors, and Marshalling the Assets
Once the initial hearing is concluded, if the court is satisfied that nothing else is required and has approved the proposed personal representative, the court will sign the “Letters”. The Letters are a document proving the individual claiming to be the personal representative was apointed by the court.
Once the court issues the Letters to the personal representative, the personal representative needs to complete multiple tasks, including the following:
- The first thing to do is to send out forms called Notice of Administration to Creditors to any known or reasonably presumed creditor. This form informs the creditors of the opening of the probate and that they have the longer of (i) 4 months from the time letters were issued or (ii) 60 days after they received the form to file a Creditor Claim with the court.
- Marshaling all the assets of the deceased. - Open an estate account with the Letters from the court and an EIN number. Once you open the estate account, move all assets held in accounts or any funds received from selling any of the deceased’s assets to the estate account. Marshaling the assets includes filling an Inventory & Appraisal Form with the court listing the deceased’s assets and their value. However, before you file the Inventory & Appraisal with the court, all the assets that are not strictly regular checking/savings accounts will need to be valued by a probate referee (an individual appointed by the court to value certain assets subject to the California probate process). This step may also take 2-3 weeks, so completing it as soon as possible is advised.
- File the Transfer of Property Forms with the relevant county. As far as the county is concerned, Real Property passes to the heirs/beneficiaries upon the deceased’s death. The appropriate documents must be filed accordingly. Additional documents may be required if the property in question is entitled to receive a parent-child exclusion for property tax purposes.
- The California Franchise Tax Board must be notified of the deceased’s death.
- The attorney or personal representative must notify the California Department of Health Care Services of the decedent’s death and that a probate has been initiated to determine whether any reimbursement is due for Medi-Cal benefits that the deceased received.
Third Stage of Probate -Accounting and Petition for Distribution
To complete the California probate process, the attorney or personal representative must file a complete estate accounting and a distribution petition with the court. If all is in order, the court will set a date for approving the distribution. Once the distribution is approved, the heirs/beneficiaries may receive their court-approved distributions.
Conclusion:
Although the California probate process is long and requires a lot of work by the personal representative and the attorney, ensuring that certain information is ready to be filed and having all the necessary approvals ahead of the different hearings can help ensure that the transfer between the different probate stages is smoth and does not take longer than it needs to.
If you wish to read our blog post, How to Ensure Your California Probate Gets Completed Without Delay, click here.
If you wish for assistance with your California probate process, please contact us. We will be glad to help you and your family through it!