This blog discusses the basic procedures of filing a probate in California. Because the author does not know your specifics, nothing herein can be construed as legal advice and you should not rely on an information herein. You are best served by hiring an attorney.
What is a Probate.
Probate is the legal procedure in California whereunder, the assets of a deceased person called the decedent are gathered and accounted for, the debts of the decedent are ascertained and paid to the extent there are assets, and if assets are left after paying those debts, then how those assets are distributed. There may also be custody of children and treatment of the remains at issue.
This blog excludes discussion of custody and issues pertaining to remains.
This blog pertains to the administration of the Probate Estate. The Probate Estate is the legal entity that gets created to gather the assets and debts of the decedent, pay the debts, and legally distribute the remainder of assets after debts are paid.
Do you need to even open probate?
If the property of a decedent is disposed off legally by Trust or Paid on Death, and there are no assets or liabilities otherwise remaining, then Probate may not be necessary. Also, if there was a trust, but, the property was simply not titled correctly before death, probate may not be necessary. Additionally, if all the assets were held by spouses as community property, probate may not be required.
However, if there was no trust, no Paid on death, and the assets are not going to a spouse, especially when those assets are real property assets, probate may be required.
Also, if the estate consists only of real estate valued less than seven hundred and fifty thousand dollars ($750,000.00), you can via a relatively new process. The Process of Probate
Petition to Open Probate: A person who may have standing must petition to open probate using form . The person who petitions the Court is generally seeking to be the Personal Representative or Administrator of the Estate or Executor or Executrix. The distinction between these roles is not pertinent to this blog. Basically, the person making the petition is asking to Court for the authority and responsibility to administer the estate. File the Duties and Liabilities of Personal Representative with the Petition: Duties and Liabilities of Personal Representative (Form ): This document outlines your legal responsibilities as the executor. Court will set a hearing time, date and place. Complete, File and Serve the Notice of Petition to Administer Estate (Form DE-) & Advertise in the Newspaper: This form notifies all interested parties about the probate proceedings. At least twenty days before the hearing, you also must publish the Notice of Hearing in a local newspaper once a week for three consecutive weeks. A copy of the notice must be mailed to all beneficiaries named in the will, as well as all known heirs. The mailed notice must be sent at least 15 days before the hearing date. Complete, serve and file Letters on Form DE-150 and Order for Probate Form DE-140, email fillable form to Court: Note, under this paragraph, you should understand, it is the Court who signs the documents discussed in this paragraph, after hearing and upon the Court’s approval. The purpose of this paragraph is to explain how to notice the beneficiaries and heirs and put the papers before the Court, before the hearing. The person who is applying to be the Personal Representative should complete a Proposed Order for Probate on Form . That person should sign, date the form, serve it on beneficiaries and known heirs and then file it covered by a Proposed Order (Cover Sheet) on Form , with the Court. Similarly, complete the Letters on Form , then attach them to the . Then, Proposed Order (Cover Sheet) on Form . Get a third party to serve these documents on the heirs and beneficiaries. Get a third party to complete a Proof of Service, usually by mail, but, if you have any agreement to electronic service already completed and filed with the Court, then you can use the CJC Form and if you have an agreement for e-service on file and can e-serve, you can use . You should email the fillable files, meaning copies of Form and Form that the Court can edit to the department where the hearing is being held. Attend the Initial Hearing, usually set by Court about two (2) months after filing DE-111. you must attend the initial hearing. If there is a will, the Court will determine whether that will is valid, and listen to any person who wants to challenge the validity of the will. There may be discussion of a bond and how much the bond should be issued for. A bond is a guarantee by a third party, a company, that will pay money to the beneficiaries, if the person who has asked to be the Personal Representative does not perform. The person who petitions for the hearing will be responsible for applying for, paying and obtaining the bond ordered by the Court. Serve Notice of Order on Probate. If the Court approves the petition, the version of the form Order for Probate on Form that the Court has approved is issued, granting you the authority to proceed with estate administration. You should complete the a Notice of Entry of Judgment or Order on , attach the Court-signed Order for Probate, and have a third person serve it on the beneficiaries and heirs, then file the Notice of Entry of Judgment or Order along with a completed, dated and signed by the person who served the documents, Proof of Service. The Court should issue either (a) Letters Testamentary or (b) Letters of Administration, the former if a will is probated, the latter, if no will is probated. Within four (4) months of the Personal Representative’s Appointment, gather information on assets and liabilities, complete, file and serve the Inventory and Appraisal (Form DE-): This form requires you to list all the assets owned by the deceased at the time of death, along with their estimated values. Send a Proposed Accounting and Distribution to the Beneficiaries and Heirs. Petition for Final Accounting & Distribution, Distribute, Obtain Order, Request Judgment, Obtain Judgment, Serve & Final Notice of Entry of Judgment. Account and Petition for Distribution if there are enough funds to pay all taxes and debts, and the time for filing creditors’ claims has passed. File and serve a Proposed Order, Give notice of the hearing for Judgment and Final Distribution. If a hearing for Approval of Final Distribution has not been set, request one. Attend the hearing. Get Order. Serve, then file a Final Notice of Entry of Order, and cause a third party to serve, complete the proof of service and file that proof of service with the Court.
Basics of Probate Procedure
