If you’ve heard about the probate process in California, it’s probably not something you’re looking forward to. In fact, just the thought of researching how to probate an estate in California may overwhelm you. You may even be trying to find ways to bypass California probate altogether.
Unfortunately, if you’ve lost a loved one, chances are that their estate is going to need to be probated.
Probate has a bad reputation because of how complex it can be to navigate, how long it takes and how expensive it is — yes, probate fees can be very high. However, what people tend to dislike the most about California probate is that it holds up their inheritance until all the steps in the probate process have been completed.
While we understand that probate can feel like a drag when you are waiting for your inheritance, it’s important to understand there are important reasons for it.
For example, what if your loved one had updated their will just last month, but the will that was entered into probate was from a decade ago?
Or, what if your loved one had owed you $50,000, but they died before they could pay you back?
Or, what if someone has stolen valuable family heirlooms from your loved one’s home that were supposed to pass down to you?
The probate process in California could help resolve these issues efficiently. Continue reading to learn more about what probate is, its purpose and when it’s required.
What Is Probate in California?
In simple terms, probate is the court-supervised legal process that’s required when someone dies leaving ”probate-able” assets behind. The process of probate can be quick and simple, or highly complex and time-consuming.
At the initial probate proceeding, an executor or administrator (called the personal representative) will be appointed to supervise estate administration, which is another term for probate. While the final goal of the probate process in California is to distribute beneficiaries or heirs their rightful inheritances, there are other critical steps along the way that are just as important.
The role of executor or administrator can be time-consuming, and it comes with many responsibilities, so if you plan to serve, you should make sure you are up to the task. Personal representatives are fiduciaries, which means they are bound by the court to put the interests of the beneficiaries first. If the court finds them to be in violation of their fiduciary duties, they could be held personally liable for any damage they caused to the estate.
What Is the Purpose of Probate?
Many of our clients ask: why do you have to have probate?
Regardless of whether a person dies without a will or with a will, the probate process must take place to ensure their estate is distributed to their intended beneficiaries and/or rightful heirs. Probate also helps ensure that their will (if they have one) is authenticated by the court, and their creditors are paid as appropriate. If a person is suspected of dying without a will, probate can verify whether or not they actually did die intestate.
The main purpose of California probate is to ensure estate assets are distributed as per the instructions on the will. In instances where there is no will to provide instructions, intestate succession laws, which can be found in California Probate Code sections 6400 – 6455, will determine which of the decedent’s heirs are entitled to inherit from their estate and what portion of the estate they will be entitled to inherit.
When Does Probate Start?
The probate timeline in California is quite straightforward. The probate process begins once someone files a petition for probate. The petition for probate asks the court to (a) admit the decedent’s will to probate by confirming its authenticity, or confirm that the decedent died without a will in the case of intestacy; and (b) appoint an executor or administrator to oversee estate administration.
Who files the probate petitions? It is often the proposed executor who completes this first step, although it technically could be anyone. In the event the decedent died without a will, the proposed administrator or a family member of the decedent typically files the initial probate petition (called a petition for letters of administration), though it could be anyone in this instance as well.
At the initial probate hearing, the court may grant the petition for probate and appoint an executor or administrator if there are no objections from interested parties. If a party does object to the petition, the process of admitting a will to probate and appointing an executor or administrator can take longer, and may involve additional hearings before the probate court, or even a trial. Either way, once the court does ultimately appoint an executor or administrator, the formal estate administration process can begin.
Refer to later sections of this article to learn more specifics on how to start probate.
When Is Probate Required in California?
There are some circumstances in which a formal probate could potentially be avoided.
The formal probate process in California could potentially be avoided in the following circumstances:
- If most of a decedent’s assets are being held as non-probate assets (e.g., trust assets or assets being disposed of through beneficiary designations, such as the deceased bank accounts and life insurance policies)
- If the decedent’s assets that are subject to probate are worth less than $184,500 (for deaths after April 1, 2022)
- If assets are being held as
In California, simplified procedures to bypass a formal probate can also be utilized under specific circumstances. For example, if the total value of the decedent’s estate is less than $184,500, a form known as a small estate affidavit can be used by the persons entitled to the decedent’s property (i.e., beneficiaries identified in the decedent’s will or the decedent’s heirs) to potentially gain ownership of the decedent’s property in a single probate proceeding.
Even if the value of a decedent’s property exceeds $184,500, the decedent’s surviving spouse or registered domestic partner may be able to file a type of petition known as a spousal property petition with the probate court to obtain ownership of any property they are entitled to without a formal probate.
For smaller estates that engage in summary probate, assets are distributed to beneficiaries without the need for lengthy court hearings. The need to file certain documents is bypassed as well, saving money and time for everyone involved.
Ultimately, however, if the decedent died with an estate valued above the threshold for using simplified procedures, a formal probate will be required.
California Probate Procedure Explained
The probate process is crucial. Without it, wills would be of questionable validity and estate beneficiaries and heirs may not receive their appropriate shares of an estate. Furthermore, the decedent’s property cannot be formally transferred to beneficiaries and heirs without it being probated first.
In the following sections, we’ll delve into the main probate steps in California. This will be useful for personal representatives who either are new to probate in California, don’t know how to start the probate process or are in need of a review.
How Does Probate Work? — Steps in the Probate Process
The chief responsibility of the personal representative is to carry out the instructions of the decedent’s will. If there is no will, they must ensure heirs receive their rightful inheritances in accordance with intestate succession laws.
However, there are other responsibilities the personal representative must also oversee, including:
- Keeping track of important documents, including the decedent’s death certificate and will
- Sending notice to all interested parties (e.g., beneficiaries, beneficiaries under prior versions of the will, heirs, creditors)
- Publishing a public estate notice to creditors
- Marshaling estate assets
- Keeping thorough records of every estate-related transaction and accounting to beneficiaries
- Satisfying valid creditor’s claims
- Distributing assets to beneficiaries in accordance with the terms of the will or intestate succession laws
Learn more details about the probate timeline in California, including when probate begins, and the steps in the probate process from the following sections.
Filing the Petition to Open Probate
It’s important to know how to start the probate process if you are a personal representative. The probate process in California begins when someone files a petition to open probate in the county where the decedent resided at the time of their death. The person who files for probate is usually the named executor (if the decedent died with a will) or a family member of the decedent, although it does not have to be.
The court will then schedule a hearing to validate the will or verify that there is no will, and start the probate process.
Mailing and Publishing Notices
One of the first tasks of a personal representative is to mail notices of the initial probate hearing to all the beneficiaries and heirs. This notice must be mailed to everyone listed in the will, as well as any heirs who would stand to inherit from the estate if the will were voided.
In addition to mailing notices to beneficiaries and heirs, the personal representative is responsible for publishing administration of estate notices in a local newspaper for a minimum of 15 days.
Authenticating and Interpreting the Will
Once the petition for probate has been filed, attention shifts to the will of the decedent. The court will analyze it at the initial probate proceeding to confirm that it’s valid and can be admitted to probate.
So long as no interested parties filed objections to the will’s admission into probate, and the document has been determined to be valid, the court will officially appoint an executor to oversee it. If the person named as the executor in the will lacks the time or willingness to perform their duties, they can decline their appointment, and the court will appoint someone else to serve, but as administrator. To become administrator of the estate, you must be first in line to serve in the order of priority mentioned in Probate Code section 8641.
If a will exists, then it is necessary for the personal representative to take steps to understand it. A probate attorney can help both personal representatives and beneficiaries interpret the will so all parties understand which of the decedent’s assets are being disposed of through their will, as well as who the beneficiaries are.
It is not the job of the executor to make sense of ambiguities in the will. Instead, if they find any language in the will that cannot be interpreted or can be interpreted in more than one way, they must file a petition for instructions with the court, asking the court to resolve them.
Gathering of Assets and Accounting
Before any assets can be distributed to creditors or beneficiaries, they must be fully accounted for.
The executor or administrator must gather all probate-able assets and create an inventory of them. The inventory should contain each asset’s value at the time of the decedent’s death, as well as each asset’s value when it was disposed of to its rightful recipient.
It’s generally required for a personal representative to provide beneficiaries and heirs with formal accountings at the close of administration, if not sooner. Creditors may also have a right to receive accountings from personal representatives. For this reason, it’s best to keep estate assets accounted for at all times.
Satisfying All Debts
It’s essential all creditors be paid before beneficiaries or heirs receive their inheritances. If the decedent has substantial debts, it’s possible this stage of the California probate process could drain the estate of its resources before the personal representative has had a chance to make any distributions to beneficiaries/heirs.
As the personal representative, you will want to try to figure out who the decedent’s creditors are (e.g., by searching their mail, credit reports, bills) and mail or personally deliver them notice of their death. Once the identity of creditors are ascertained, the personal representative has an obligation to serve them with a formal notice of administration of the estate so they can take steps to enforce their creditor rights.
While California Probate Code sections 19040 – 19041 go over the requirements of a notice to creditors in detail, you can find a summary of what should be included in one below.
- The name of the decedent
- The amount of time creditors have to enter their claims
- Contact information for the personal representative or the personal representative’s lawyer
Creditors will have within the later of four months from the date general letters are issued to a personal representative or 60 days after the date notice of administration is mailed or delivered to the creditor to enter a claim with the estate, after which the estate can either accept the debt and pay, or deny that the debt is valid and not pay. If a creditor’s claim is denied, the creditor can decide whether or not to try and obtain a judgment against the decedent’s estate.
The personal representative is responsible for ensuring creditors receive the appropriate payout from the estate if their claims are valid. Note that taxes, both state and federal, must also be paid from the estate.
Distributing Assets
Once creditors and all other probate fees, including taxes, have been paid, it’s time to provide beneficiaries/heirs with their inheritance.
If all the assets have been properly accounted for and tracked, this step in the probate process should be easy. You will just need to file a petition for final distribution with the court before you can complete it. Included with the petition should be a final accounting and report, and a proposed distribution of assets.
If the court grants your petition, then you can proceed with distributing estate assets to the appropriate beneficiaries. Remember that if the asset in question has a title, it will need to be transferred into the names of the beneficiaries who are inheriting it.
FAQs: How Does Probate Work Without a Will and With a Will?
Is applying for probate in California without a will different from applying for probate with a will?
Yes, starting the probate process without a will in California is different from starting it with a will; however, the difference is very subtle.
Whereas with a will, you would file a petition for probate and lodge the original will with the court, without a will you would file a petition for letters of administration, which is a slightly different petition from the petition for probate.
What does it mean to open an estate?
Opening an estate entails filing a petition for probate or petition for letters of administration. By taking this step, you are essentially “opening” an estate and subjecting it to probate to settle the decedent’s debts and distribute their assets to the rightful beneficiaries and/or heirs, and ultimately “close” it.
Can the personal representative seek help with their duties?
If the personal representative reaches a point where their duties become too stressful or time-consuming, there’s always the option of enlisting the help of a probate attorney or other relevant professionals.
It’s important to realize that as a personal representative, you can typically use funds from the estate to cover help from a third party. This means an executor can hire an attorney and rely on the estate to cover their fees (assuming the estate is adequately funded and the professional provided a beneficial service to the estate).
Having experienced professionals in your corner to guide you on how probate works, probate timelines in California and other important details can help ensure your job gets done right, while also protecting you against personal liabilities. That’s why even seasoned executors and administrators often turn to us for help.
What can cause a will to be denied admission to probate or be invalidated?
Probate tends to get a bit more complicated than usual when there is a will dispute.
For example, a will could potentially be denied admission to probate if interested parties successfully object to its admission at the initial probate proceeding by arguing that the will is invalid.
Some of the most common grounds for will contests include undue influence, fraud or a lack of capacity.
While challenges to the validity of wills are most commonly brought before the will is admitted to probate, such challenges can also be brought within 120 days after the will has been admitted to probate as part of a petition to revoke the will.
If you plan to contest a will, it’s important to be mindful of will contest deadlines
What if there are conflicts among co-executors?
When a parent dies and is survived by more than one adult child, it sometimes happens that all of them are named as co-executors.
While this isn’t inherently a problem, it can elongate the probate process if the co-executors are spread across different locations throughout the world or are difficult to reach. For example, if documents have to be signed by all the co-executors and one or more of the co-executors are inaccessible, it could hold up the entire probate process.
Problems can also arise if the siblings named as co-executors don’t get along, since unanimous consent may be required for some estate-related decisions.
Resolving conflicts involving probate takes time, and depending on the severity of the conflict, it could extend the probate process by months or even years.
How long does probate take in California?
Ideally, a probate case will be completely resolved within six to nine months. However, complications, such as inheritance disputes, can cause probate to last for multiple years. The length of a probate is also determined in part by the complexity of the assets, and the distribution scheme called for in the will.
For example, if the decedent’s estate consists of illiquid assets, such as real estate or interests in a business, these assets could take longer to liquidate, which can extend the probate process in California.
Probate can also be extended if the terms of the will require for probate to remain open for a lengthy period of time, e.g., where distributions are required to be made to beneficiaries over time.
Can a personal representative earn payment in California?
Yes, in California a personal representative can receive two forms of commission for their work administering an estate: ordinary compensation and extraordinary compensation.
Ordinary compensation is compensation for services that are typically required when administering estates (e.g., marshaling assets, paying debts, accounting, and making distributions to beneficiaries) and are computed using a formula set forth in Probate Code section 10800 based upon the value of the assets subject to probate.
Extraordinary compensation refers to compensation for services not regarded as an executor’s ordinary duties (e.g., services related to litigation, the sale of real estate). Executors may be compensated for extraordinary services at a reasonable hourly rate within the discretion of the court.
Must executors obtain a bond? How much does an executor bond cost?
In California, the probate court will often require the executor to obtain a probate bond. The bond is designed to protect the estate in the event the executor mismanages it.
When a bond is present, it means that the beneficiaries can recover funds from the estate if they’re stolen by the executor.
The cost of the bond will depend on the size of the estate and will typically be 0.5% to 0.8% of its total value. This means that a $20,000 estate would require a bond worth around $150, whereas a bond for a million-dollar estate may be $5000.
How long does probate take in California?
Without a decedent’s assets passing through the probate process, they will continue to remain a part of their estate. In other words, it would not be possible to legally transfer them to beneficiaries and/or heirs.
You may not experience the negative consequences of not filing for probate immediately, but when you attempt to sell or transfer property that was left to you, but that you do not formally own due to not having probated it, you likely will have to go to court to file a late probate, which would not be ideal.
All in all, filing probate within the recommended probate timelines in California is the best choice.
Our attorneys can help you understand how probate works in California.
Whether you are a personal representative, beneficiary or heir, California’s probate process can be overwhelming to understand. But it’s important to remember that help is available.
Keystone Law Group boasts a talented team of probate attorneys who can help with every aspect of the California probate process. We can answer your questions while serving as your guide from the start of probate to the end.
Just know that you don’t have to take on the complicated probate process in California on your own. Contact us at your convenience to request a free consultation.
