Probate: From Beginning to End

Probate is a court process in which an individual’s assets are passed to their beneficiaries upon that individual’s passing.  Probate can take anywhere from six months to two years in California.  If the decedent died with a will or without any estate planning, then probate will likely be necessary.  This article will explain, in depth, probate and working with a Folsom probate attorney. 

Step 1: Selecting and Meeting with a Probate Attorney

Clients will generally do online research when finding the best attorney for them.  This will be based on online reviews, the attorney’s website and the feel the client gets when speaking with the attorney.  More on that here. 

After selecting the attorney, the client will meet with them to go over some details.  This will include whether or not the decedent passed away without a will, whether a death certificate is available and what assets were in the decedent’s estate.

Step 2: Filing the Initial Court Documents. 

The California laws relating to probate can be found in the California Probate Code.  To begin the probate process, the primary document is the “Petition”, which familiarizes the court with the decedent’s estate, and this is accomplished via California Form DE-111. 

In terms of who should be filing the petition, this is best undertaken by the executor named in the deceased’s will, which is generally a friend or family member.  However, if there was no will or an executor was not named therein, then the law states that there is a certain preference list in terms of who can be the executor.  These range from the spouse, at the highest priority, to more distant relatives at a lower priority.

Step 3: The Hearing

After filing the petition, the court will then set a hearing, which is an important milestone in the probate process. Upon receiving notice of the hearing, the petitioner must file notice in a newspaper of general circulation that a probate hearing is taking place for the deceased. Additionally, all legal heirs, persons named in the will and creditors must be notified of the hearing. 

On the day of the hearing, the court will determine who is to be the executor (or personal representative or administrator, as it is sometimes referred to) for the estate.  The person to be named is generally the individual who was listed in the will, although this can sometimes vary depending on the person named.  If there was no one named in the will, or there is no will, then it is generally the closest relative. 

Step 4: Probate Formalities

Once the personal representative has been named by the court, there are specific action items. First, the court will generally require a bond to be posted, so as to ensure that the executor faithfully executes their responsibilities.  These bonds can often be quite pricey, depending on the size of the estate.  However, if the decedent’s will specifically waives the bond requirement, then the court can forego the bond.

The other formality is for the will to be “proven” in court, meaning that it is verified by the court. This is generally a smooth process, so long as it is signed and witnessed by two people (preferably disinterested individuals). 

Step 5: Asset Collection and Satisfaction of Claims

After the will has been proven, the executor must then collect all of the assets and file an inventory.  In the event that there are non-monetary assets in the estate, then a probate referee may be required to value such assets for the inventory.

With respect to creditors, they must be provided with formal notice of the decedent’s passing, allowing them to submit their claim. Any legitimate claim will be paid out and a receipt will be provided.  

Step 6: Second Hearing

After all creditors are paid, the executor will then seek to pay all others, including taxes due, attorney fees, executor fees and then finally distributions to the beneficiaries.  The probate court will approve such payments during this second hearing.  After the hearing, the executor will then distribute estate funds as approved by the court.

Step 7: Closing the Estate

In order to close the estate, the court will hold a third and final hearing.  Here, the court will ensure that the executor properly executed the instructions provided during the second hearing for distributions. The court may require receipts to be provided.  If the court is satisfied that this has been completed, the executor will be discharged and the probate will be closed. 

Summary

Probate in California requires the aforementioned steps, however these steps can vary widely in complexity depending on the estate.  If you are seeking the expertise of an experienced Folsom probate lawyer, please don’t hesitate to call us or send us a message.