Frequently Asked Questions

 

What is Probate?

Probate may be defined as the “Court supervised process of proving a Will document”. It also means the duly court authorized qualification and appointment of an executor or administrator of the estate. 

The probate process is also responsible for the identification and gathering of the deceased’s personal assets, along with the payment of all the debts and subsequently distributing the remaining balance to the rightful heirs or beneficiaries.


How long does Probate take?

If the probate has no issues (both legal and otherwise) then the whole affair can be concluded within eight to twelve-months.

 The above mentioned time frame alsoincludes a sixteen week creditors’ claims period,’ for any claims that creditors may make on the estate. Along with that is also included the overall time it takes for the start of the proceedings ‘after ‘thepetition has been filed but before it is actually heard. 

There are different reasons for the delay between filing and an actual hearing and most of them occur because of crowded court calendars. Apart from that, there are also many other reasons for the inordinate delay that may include unresolved issues with creditors, taxes, or contestants to the will that also tend to cause delays in the proceedings and thus cause them to lingerfor longer periods of time.


How does a probate case get started?

Usually, probate proceedings commence with the filing of a “petition for probate” at the Superior Court of the county where the recently deceased owner of the estate used to live. This petition is generally prepared by the attorney on behalf of the person who is interested in becomingthe administrator or executor of the decadent’s estate. 

This “petition for the probate” contains the relevant details regardingthe deceased along with the details about the (prospective) executor, as well as all necessaryinformation with regard to the legal heirs of the estate. Furthermore, this petition also contains information regarding the actual size of the estate while it simultaneously clarifies the fact that a bond may or may not be required.


Who is an executor?

The executor is sometimes also referred to as an administrator or for that matter a ‘personal representative’. In other words he is the focal person who is directly responsible for the overall management of the probate. 

As a general rule, the responsibilities of an executor also includes the preparation of a comprehensive inventory as well as filing all relevant taxes while simultaneously paying the estate’s bills. An executor also looks after distributing the estate amongst its legal hairs once a court order has been obtained by all the concerned parties. The executor is generally nominated in the actual Will document.

However, should there be no will made of the original owner of the estate, or for that matter if all of the executors who have been nominated (by the individual making the will) have died or are in any way unwilling to take on their duties to serve as executors of the estate, then state law has a provision to the effect that the decedent's closest relative (or relatives as the case may be) will automatically have the very highest priority to become the administrator(s) of the decedent’s estate.  Typically, (depending on the circumstances) such a person (or persons) may be referred to as the personal representative administrator, executor, or administrator with the will annexed.


What are the duties of an executor?

The duties of an executor of the estate include the following:

1.     The overall management of the assets of the property, so as to be able to prevent losses to the same

2.     Paying all the legally due unpaid bills that may have been incurred by the estate

3.     Filing the tax returns

4.     The preparation of a comprehensive inventory of all the assets that belong to the estate

5.     Locating the heirs

Ultimately, the core aim of the exercise is to effectivelywrap up all of the decedent's financial affairs in a transparent manner so that the same could be easily distributed amongst the beneficiaries without any problems, legal or otherwise.


Does every estate have to go through the probate process?

It is not necessary for each and every estate to go through the probate process, since there do exist many different cases where a deceased’s estate has no requirement of a formal probate. Some of the situations where the probate process is not required include the following:

1.     All those estates where the sum total assets are calculated to be under $150,000

2.     Estates that are held in trust

3.     All those cases where the entire estate passes to the surviving spouse of the deceased. 

However, even in those cases where a formal probate process is not required or mandated by law, at least some sort of legal process is usually necessary. In such cases it is recommended to consult with an expert probate lawyer.


What if the person left less than $150,000?

In case the deceased’s property is worth an amount that is less than $150,000 and his heirs do have the legal right to inherit then it may not be required for them to go through formal probate so as to acquire that property.

However, in order to transfer said personal property it may be necessary to secure an “Affidavit for Collection of Personal Property (as) per Probate Code §13100-13116.”  It is possible to download the above mentioned form from the website of the court.

In case the legal heir(s) need to transfer actual or real property (such as a building or structure), then a form specifically designed for this purpose can be used. Apart from that, a summary proceeding may be deemed necessary by the court. 

It is considered prudent to have the services of a duly qualified probate attorney so that he might be able to give specific legal advice about the process of real property transfers.


What if the person left more than $150,000?

If the decadent’sproperty has been proved to be worth above $150,000, then formal probate proceeding is required.


If the deceased person resided and died in one county can the probate be filed in another county?

No. It is mandatory for the probate proceeding to be filed in the specific county where the deceased either resided or owned property. For example, if the deceased owned real property or lived in Los Angeles, then it is imperative that all probate proceedings be filed only in Los Angeles.


What if I was married to the deceased person?

In this case it is possible for you to utilize a summary proceeding for example the “Spousal Property Petition.”


What does the "Custodian of the Will" do?

As per the section of the Probate Code §8200, the custodian of the original Will documents itself is allowed a total of 30 days starting from the day when he or she was informed of the death of the maker of the Will to deliver the original Will document to the office of the county clerk.

There is afifty dollars fee for delivering an original Will to the office of the clerk, until and unless the document is accompanied by a probate petition. In other words, should the Will document(s) are submitted along with the petition as well, then there would be no probate fee as such. However, the original Will document mustbe delivered only to the clerk of the specific county in which the deceased either lived or owned real or property.

Apart from that, the custodian (of the Will) should also send at least one copy of the Will document to the individual named in the Will to serve as Executor. His (or her) failure to comply with Probate Code §8200 could (potentially) subject the custodian to legal proceedings.


What happens if there is no Will?

If the deceased did not leave any will, then a court proceeding would be deemed necessary. In such a case it is up to the Court to appoint a personal representative or executor to manage the affairs of the estate. 

In such circumstances the individualpetitioning the Court for subsequent appointment may well be either a domestic partner, spouse, friend, close relative, or even a creditor of the deceased. The Probate Code effectively sets the order of priority for any individual interested in serving as a personal representative.


What happens after a probate case is filed?

A number of steps are taken once the probate clerk has given a date for the hearing, these include: 

1) The petitioner is bound to give notice of the upcoming hearing to any and all persons who have expressed an interest in the deceased’s estate. Here the probate Code §48 clearly defines whoan interested party may be. Furthermore, the actual proof of mailing the ‘notice of hearing’ must be completed by any individual who is above 18 years of age and a part of the probate case. Additionally, the proof of mailing must also be filed with the Court as well, before the commencement of the hearing proceedings.

2) Notice regarding the probate proceedings has to be published in any newspaper in the specific county where the deceased either lived or owned any real or actual property. The proof of publication’ should also befiled with the Court before commencement of the hearing.

3) The court file will be reviewed by the Probate Examiner before the hearing and theexaminer’s notes will subsequently be posted on the Court’s website. Here the petitioner will be given an opportunity to file all required additional documents in case there are any defects in the probate itself.


What happens when I go to court?

Before the commencement of the probate proceedings, the judge will start the hearing by verbally calling out the case. He will then listen to the arguments and comments as they are declared in the court room by either a duly qualified attorney at law or alternately the self-represented petitioner himself. He will then take into consideration the commendation of the Probate Examiner and will then either grant or deny a petition. However, the judge may opt for a continuance if he deems it necessary to allow more time to eliminate any defects in the probate.


How does the probate process work?

A probate typically works in the following ways:

Once a person dies, then the individual he has named in his will as the executor or the administrator of his estate takes over the management of the said estate. 

Alternatively, if a person passes away without leaving a physical Will document, another individual will be duly appointed by a judge. This person would have the responsibility of filing all the relevant papers and documents in the probate court located in that particular county (i.e. the county where the deceased person either lived or held property). 

It is incumbent on the executor (either court appointed or nominated in the Will document) to prove the legality as well as the validity of the aforementioned document and to present to the court with the full list of all properties under the deceased’s name as well as the complete inventory of the deceased’s assets. 

Furthermore, he also has to furnish the court with a full disclosure regarding any liabilities owed by the deceased’s estate to the creditors along with a list of the estate’s inheritors and benefactors. Finally, all the sundry payables as well as assets (both liquid and permanent) are listed and their information given to the heirs and creditors who are officially notified of the death of the estate’s owner.

It is incumbent on the administrator to seek out, secure and take care of all the assets of the estate during the probate proceedings in the best interests of the legal heirs and the creditors.


Does all property have to go through probate when a person dies?

No. As a matter of fact, most states in the United States of America actually do allow a certain (predetermined) amount of property to be permitted to the beneficiaries without going through the formal probate process.


Who is responsible for handling probate?

The responsibility of handling the probate lies with the executor of the estate of the decedent. On the other hand, if there is no actual Will document or the Will does not name the administrator of the estate then the responsibility of naming the same comes under the purview of the court that subsequently names the administrator based on certain stringent criteria as determined by the law. Usually, this task is assigned to the deceased person’s “closest capable relative” or for that matter the major heir or beneficiary.


Should I plan to avoid probate?

In spite of the best of intentions, most probate proceedings usually are of little benefit to the heirs and beneficiaries. In fact, they actually tend to costs them a lot of unnecessary time and money.

Most probates regarding the deceased’s assets are conducted only if their estates have complications and issues with regard to their payables and other liabilities. Such problems become more acute if the total assets of the property are not able to cover the total liabilities of the estate. 

Ultimately opting out of the probate process involves a lot of effort and energy as well as time.  For a person making a will, it is all the more advisable to avoid lengthy probate procedures al bait only on the condition that he or she has little property to dispose off. There would be no point in avoiding it since the state’s legal system would automatically ensure that the property qualifies for a more simplified probate procedure.

But on the other hand if the property owned is significant then it might be in the advantage of the legal heirs if the owner initiates proceedings to avoid a probate, during his or her lifetime. 

This will ensure that the property attached to the estate of the maker of the Will, would be seamlessly passed on to the legal heirs or beneficiaries (typically spouse and other close family members) with minimum hindrance.