Category: Probate
Almost no one intends to find themselves in probate court as a Personal Representative of an estate. Going through a probate is a long and arduous process. California has one of the most notorious probate systems, with even uncontested probates taking 18-24 months to complete.
However, do not despair. While you cannot make the probate process enjoyable, you can expedite it by making sure that you work closely with your attorney to make sure that all necessary information is filed with the court prior to the required date, to make sure that if the probate court requests corrections to the filings, you can still meet the statutory filing date.
Timely filings by the attorney and Personal Reparesentative is crucial to streamline the probate process. Not only can the attorney and Personal Representative be held liable to sanctions by the court for late filings, but every time the court has to reschedule a hearing date for probate (for example, because a document was not filed on time), it is not uncommon for the court to schedule the following hearing 4-5 months in the future.
So, if you want to understand how you should work with your attorney to make sure that your probate goes as smoothly as possible, keep reading.
Nominating the Personal Representative for the Probate
After the deceased's passing, if probating an estate is required, the first thing to decide is who should be the individual(s) that should request the court to be nominated to represent the estate of the deceased in the probate process (the "Personal Representative"). The Personal Representative is a position that carries a lot of responsibility. At the end of the probate process, the Personal Representative is entitled to the same statutory fee as the attorney.
If the deceased left a will, the individual listed as executor will petition the court to be the Personal Representative.
But what if there is no will?
However, suppose there is no will, or there is a will, but the chosen executors decline to serve in that role. In that case, the heirs and beneficiaries may choose the Personal Representative according to a prioritized list in the California Probate Code Section 8461.
Deciding who the Personal Representative will be is the first step to ensuring the court does not extend the probate unnecessarily. For example, It is not uncommon for the spouse or sibling of the deceased to file a petition with the court to request an appointment as a Personal Representative. However, if the deceased had children, they may file a competing petition to be appointed Personal Representative. Regardless of who has priority, when there are competing petitions, the judge will sometimes want the attorneys to discuss the matter between themselves and try to come to a compromise without the court's involvement. If the judge delays the appointment to give the attorneys time to discuss the matter, the next time the matter will appear in front of the probate judge could easily be another 4-5 months.
The heirs, beneficiaries, and other parties involved must agree on who will be the Personal Representative. Once the heirs and beneficiaries have agreed upon a Personal Representative, the Personal Representative must work with the attorney to provide them with the necessary information to file the initial documents to petition the court for probate.
Providing Notice to the Heirs and Beneficiaries
After filing the petition for probate with the court, the court schedules a hearing date to hear the petition. At this point, the attorney and Personal Representative must complete a few time-sensitive actions before the initial hearing. One of those actions is filing a notice of the petition with the heirs and beneficiaries of the deceased. To ensure there is no delay in filing the petition, the Personal Representative should ensure the accuracy of the names and addresses of the heirs and beneficiaries of the deceased.
Who are the deceased's beneficiaries? The deceased's beneficiaries are anyone who is provided for in the deceased's will (if any exists).
Who are the deceased's heirs? In the California Probate Code, heirs are those individuals entitled to inherit from the deceased if he passed without a will. In layman's terms, heirs are the class of someone's closest living relatives who are alive at the time of the deceased's passing. If such a class does not exist at the time of the deceased's passing, then the heirs are the next class (more distant relatives). Depending on your situation, figuring out who the deceased's heirs are could be tricky, and you will want to confirm with your lawyer that you have understood correctly who the deceased's heirs are.
Even if only one heir does not receive notice of the petition to probate the estate, the court will reschedule the hearing date, which means another long continuance until the next hearing.
File the Original will with the court Prior to the Initial Hearing
If the deceased did leave a will, you must file the original will with the court before the scheduled hearing date. The court will not hear the petition until the Personal Representative files the original will.
Important Tip: Make sure that you file every page of the will. While this may seem pointless advice, I have had clients who filed the will without the cover page because they thought it unnecessary. However, when the clerk reviews the will and sees that the first page of the filed will has the number "2", he will reject the filing until he receives all pages.
Waivers of Bond
Once the attorney sends out Notices to the heirs and beneficiaries, notifying them of the probate process and the scheduled hearing date, and unless the deceased had a will that explicitly waived the bond, the Personal Representative will want all the heirs and beneficiaries to send the attorney signed Waiver of Bond forms. If all Heirs and Beneficiaries sign this form, the court may not require (the court may require the posting of a bond for other reasons) the Personal Representative to post a bond.
Posting a bond is costly, requiring filing more forms and approval by the bond company. It can easily delay the probate process by 1-3 months. The court will not issue the Personal Representative with Letters until it is satisfied that the Personal Representative completes all bond requirements.
Identifying the Creditors and Providing Them with Notice
One of the most important aspects of probate is providing notice to all known or reasonably ascertainable creditors and that the Personal Representative pay those creditors that have valid claims (there is a court procedure for the Personal Representative to reject the request of creditors that the Personal Representative does not believe have a valid claim for payment). While the deceased was alive, the Personal Representative may not be privy to all of the deceased's creditors. For this reason, the Personal Representative must gain access to the deceased's mail from the date of his passing to keep track of any creditors or potential creditors (for example, a credit card company that issued a credit card to the deceased will be a potential creditor that needs to receive the same notice as a verified creditor).
After the court issues the Personal Representative with Letters, your lawyer needs to urgently send Notice of Administration to Creditors forms to all creditors and potential creditors. Sending notice to creditors should be the first task to complete after the court issues the Personal Representative with Letters because the longer of (i) 4 months since the issuance of Letters or (ii) 60 days after you send out the Notice of Administration to Creditors Form have to lapse before you initiate the next stage of the probate. Since the notice to creditors will take at least 4 months, This should be the first task to complete once the court issues letters. For this purpose, ensure you have a complete list of the deceased's or probable creditors ready for the attorney no later than the date the court issues Letters.
List of Assets
After the court has issued Letters, one of the Personal Representative's tasks is to marshal all of the decedent's assets. Many of these assets will have to be valued by a Probate Referee (a professional appointed by the court to value different items for probate); this valuation process can take the probate referee 2-3 weeks. As such, it is advisable to have a list of the decedent's assets, which are subject to probate, ready for the attorney once the court issues the Letters.
Having the necessary description of each asset that needs to be valued by the probate referee will not always be possible. For example, Suppose you know that the decedent had a brokerage account with Charles Shwab. Charles Shwab will not provide any information about that account without first seeing certified copies of the Letters. The probate referee will not be able to value the brokerage account without the needed information from Charles Shwab. As the Personal Representative, you should list all financial institutions to which you need to show a copy of the Letters before they release the necessary information to you.
Ensure you understand what information the attorney requires for each institution. Once you receive a certified copy of the Letters, present them to each institution holding the deceased's assets and request that they send you the information the attorney requested.
Conclusion:
While the information above may seem trivial, many probates drag on and on simply because of a lack of clear communication between the attorney and the Personal Representative and a lack of understanding by the Personal Representative as to what his duties are and what actions are required of him or her to move the probate along as quickly as possible. Do you need help with a probate? Contact us now so that we can schedule a free consultation to see how we can help you.