The Probate Process: How it Works With and Without a Will

In simple terms, probate is the legal process that’s required when someone dies leaving ”probate-able” assets behind. 

The main purpose of 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, California’s intestacy laws will determine who the decedent’s heirs are and what portion of the estate they are entitled to receive.

At the initial probate proceeding, an executor or administrator is appointed to supervise administration. While the final goal of the probate court process is to distribute inheritances to beneficiaries and/or heirs, there are other critical steps along the way that the executor or administrator is also responsible for completing.

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. It is often the proposed executor who completes this first step, although it technically could be anyone. 

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.

There are various circumstances in which a formal probate may be bypassed. These include: 

• 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) 
• 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 community property with right of survivorship or in joint tenancy 

In California, simplified procedures to bypass a formal probate can only 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 gain ownership of the decedent’s property.

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. 

The role of executor or administrator comes with a great deal of responsibility. The person in this role serves as a fiduciary, and is bound by the court to put the interests of the beneficiaries first

Assuming you were close to the decedent, they may have opted to name you as the executor of their will. If the court agrees with their nomination, it will formally appoint you to the role at the initial probate hearing.

Once appointed, the executor must complete the tasks, accounting and distributions required to carry out the instructions of the will.

In situations where there is no will or the will does not name a valid executor, the court will appoint an administrator of the estate instead. An administrator also could be appointed if the named executor is unwilling or unable to manage the estate, or if interested parties successfully dispute the appointment of the named executor.

The probate process is crucial. Without it, wills would be of questionable validity and estate beneficiaries 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 go over the probate process step-by-step. This will be useful for executors and administrators who either are new to probate in California, or are in need of a review. 

Since the will provides detailed instructions regarding which beneficiaries get what parts of an estate, you may be wondering: How does probate work without a will?

When filing for probate without a will, the intestate succession laws of California take over. These laws are detailed in California Probate Code sections 6400-6455. Essentially, intestate succession laws provide guidance for how a deceased person’s assets should be divided when no will is present, or if the will is successfully disputed. 

In general, the laws of succession pass the estate to the heirs who were closest to the decedent (e.g., their surviving spouse, children, grandchildren, parents, siblings). Unlike a will, intestate succession laws generally can’t be disputed. 

When intestate succession laws are at play, almost all the same steps of the probate process will apply. The key difference in the case of intestate succession is that there is no will for interested parties to object to or for the court to authenticate.

When someone files for probate with a will, the court will need to assess the validity of the document. If it’s determined to be valid, then the court will appoint an executor to take charge of the estate and see the probate process through until all of the decedent’s debts are paid and their assets are distributed to beneficiaries. 

Navigating the probate process with a will involves interpreting the instructions on the will, and executing them accurately.

The general responsibility of the executor or administrator is to carry out the instructions of a will, or otherwise ensure that beneficiaries receive their rightful inheritances. 

However, there are other responsibilities that the executor or administrator must oversee, including: 

• Keeping track of important documents, including the decedent’s death certificate and will
• Sending notice to all beneficiaries and heirs
• Publishing a public estate notice to creditors
• Marshaling estate assets
• Accounting to beneficiaries and keeping track of every expense
• 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 steps of the probate process in the following sections.

The probate process 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 (if one existed) and start the probate process.

One of the first tasks of an executor or administrator is to mail notices of the initial probate hearing to 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 executor or administrator is responsible for publishing administration of estate notices in a local newspaper for a minimum of 15 days.

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.

As 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 ask the court to remove them from consideration, and the court will appoint someone else to serve, but as administrator.

If a will exists, then it is necessary for the executor/administrator to take steps to understand it. They should know 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, they must file a petition for instructions with the court, asking the court to resolve them.

Before any assets can be distributed to creditors or beneficiaries, they must be fully accounted for.

The executor or administrator should gather all the assets that must pass through probate 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 the designated recipient.

It is generally required for executors and administrators 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 executors and administrators, so it is best to keep estate assets accounted for at all times.

It’s a critical detail that all creditors must be paid before any beneficiaries or heirs can receive their inheritances. Depending on the debts of the deceased, this can drain the estate of its resources before any distributions are made. 

As the executor or administrator, 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 executor or administrator 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 to 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 executor/administrator or the executor/administrator’s lawyer

Creditors will have within the later of 4 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. At that point, the creditor can decide whether or not to try and obtain a judgment against the decedent’s estate.

The executor or administrator is responsible for ensuring creditors receive the appropriate amount from the estate if their claims are valid. Note that taxes, both state and federal, must also be paid from the estate.

Once creditors and all other probate fees, including taxes, have been paid, it’s time to give each beneficiary their inheritance. 

If all the assets have been properly accounted for and tracked, this step should be fairly 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 their 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.

There is a lot to know about the California probate process, especially if you’ve been appointed as an administrator or executor of a will. Beyond knowing the probate process step-by-step, it’s also worthwhile to understand critical loopholes and other details.  

If the executor 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 an executor or administrator, 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 service that benefited the estate). 

Having an experienced professional in your corner can help ensure the job gets done right, while also protecting you against personal liabilities. That’s why even seasoned executors and administrators turn to us for help.

The most common way that probate can get complicated is when there is a will dispute. 

For example, a will may not be admitted to probate if interested parties successfully object to its admission into probate at the initial probate proceeding by arguing that the will is invalid. Some of the most common grounds for will contests are that the will was procured by undue influence or fraud, or was executed when the testator lacked 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 probate of the will.

When a parent dies and is survived by more than one adult child, it sometimes happens that all of them are named as 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, documents that have to be signed by all executors may hold up the entire process if one of them is inaccessible.

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.

Ideally, a probate case will be completely resolved within 6-9 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, such assets may take longer to liquidate, which can extend probate. Probate can also be extended if the terms of the will require that the probate remain open for a lengthy period of time, e.g., where distributions are required to be made to beneficiaries over time.

Yes, in California an executor 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 California 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.

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 that 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.